Gennacker Pty Ltd t/as Homestead Holiday Park v Hohnberg

Other: T Hickling (Administrative Assistant) (Appellants) P Smyth (Tenants Union of NSW Co-Op Ltd) (Respondent) File Number(s): 2023/00364672 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 3 November 2023 Before: W Priestley, General Member File Number(s): RC 23/19944 and RC 23/19947

REASONS FOR DECISION

1. This matter concerns an appeal from the decision of the Tribunal on 3 November 2023 (the Decision) where the Tribunal declared that under the Residential (Land Lease) Communities Act 2013 (NSW) (RLLC Act) site fee increases imposed by the Appellants on the Respondent were excessive. The Tribunal principally arrived at this conclusion on the basis that the Appellants had failed to put before the Tribunal cogent source financial materials to justify the fee increase.
2. The Appellants are the operators of two residential communities (Homestead and Hacienda) which neighbour each other. The Appellants sought to increase the site fees by 7%. The Respondent, as the representative of the occupants whom we will refer to as the Applicants, applied for relief against such site fee increases under s 71 of the RLLC Act.
3. The Appellants contend that the Tribunal had no jurisdiction to make such orders under the RLLC Act in respect of many of the Applicants (defined below as the Relevant Applicants).
4. The Appellants otherwise challenge the conclusion of the Tribunal that the site fees were excessive.
5. For the reasons which follow, we have decided that for the Relevant Applicants, the matter should be remitted to the Tribunal for a rehearing and to allow the parties to lead such evidence as they wish in order to establish whether or not the Tribunal has jurisdiction to entertain the Respondent's applications. Otherwise, the Appeal should be dismissed.

The Decision of the Tribunal

1. The background to this matter was described by the Tribunal at [1]-[7] as follows: "[1] These two applications were heard consecutively on 14 August 2023, and are made under section 71 of the Residential (Land Lease) Communities Act 2013 NSW ('the Act'). [2] The relevant facts are, with a few identified exceptions, the same in each application. Mr Wilmott and Ms Hickling are the directors of both the respondent companies. The residential communities are owned by the respective respondents and neighbour each other. The respondents have sought to increase site fees by 7%. [3] Ms Gilbert is the representative of the homeowners in each of the communities. Those homeowners are listed in the schedules to the applications. [4] Each application seeks orders declaring increases in site fees, which were notified by letter dated 20 January 2023, to be excessive, orders reducing the increase by a specified amount, and orders the site fees not exceed a specified amount. The applications do not specify any amount that the homeowners believe would not be excessive. No concession was given by the homeowners at the hearing, that any level of increase would be appropriate. [5] The application also sought an abatement of site fees for a period when the communities were inundated by flood waters, but this was withdrawn. [6] Additional orders were also sought in respect of the homeowner David Dodge, on the basis Hacienda had not entered into a written site agreement with him, and therefore it had not been agreed his site fees could be increased by notice. However this was also withdrawn as it should be the subject of a separate application."
2. In respect of the jurisdiction of the Tribunal, the Tribunal concluded as follows at [7]-[8]: "[7] The Tribunal has jurisdiction to hear and determine the applications pursuant to section 73 of the Act, and section 28 of the Civil and Administrative Tribunal Act 2013 NSW. [8] There was no objection made to the Tribunal's jurisdiction by the respondent, and the applicant conceded the notices of increase dated 20 January 2023 were valid."
3. On the basis of the evidence before the Tribunal and its conclusion as to jurisdiction, the Tribunal on 3 November 2023 made the following orders at [31]-[33]: "[31] The site fee increases in the notices dated 20 January 2023 are excessive. [32] The site fees must not exceed the level at which they were immediately prior to the increase in the notices dated 20 January 2023, for a period of 12 months commencing 1 April 2023. [33] The respondent is to refund all site fees overpaid since 1 April 2023."

The Notice of Appeal

1. In their Notice of Appeal, the Appellants assert a lack of jurisdiction in the Tribunal in three ways: 1. Lack of jurisdiction in respect of named Applicants at first instance asserted to have withdrawn their application; 2. Lack of jurisdiction in the matter because the Appellants raised a matter of federal law in their defence to the claim; and 3. Lack of jurisdiction under the RLLC Act in respect of named Applicants at first instance (the Relevant Applicants).
2. The Appellants also raised other alleged errors of law and fact.

Questions of law and leave to appeal

1. Section 80(2) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) relevantly provides that a party may appeal as of right on a question of law. It is necessary for the questions of law to be pure questions of law and that they be identified with precision as they form the subject matter of the appeal: Ferella & Anor v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22]; Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40. Further, a party may appeal on any grounds other than a question of law, with leave. As this matter is an appeal from the Consumer and Commercial Division, sch 4 cl 12 of the NCAT Act is relevant. It provides that where leave is required, the Appeal Panel may only grant leave if there is a substantial miscarriage of justice because the decision under appeal was not fair and equitable, the decision under appeal was against the weight of the evidence or there is significant new evidence (being evidence not reasonably available at the hearing of the decision appealed from). General principles concerning leave to appeal are also relevant. These are identified in Collins v Urban [2014] NSWCATAP 17.
2. As we consider each ground, we have considered whether it raises a question of law or whether leave to appeal should be granted.

Did the Tribunal lack jurisdiction in respect of named Applicants at first instance asserted to have withdrawn their application?

1. A question of jurisdiction raises a question of law.
2. Section 73 of the RLLC Act provides as follows: 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.
3. Section 71 of the RLLC Act is as follows: 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.
4. Pursuant to s 71 of the RLLC Act, Ms Gilbert (the applicant at first instance) lodged two residential communities applications as the representative of the homeowners in each of the two residential communities in question.
5. Before the determination of the proceedings by the Tribunal, some of those homeowners withdrew or opted out of the collective applications. The Appellants contended that seven of the homeowners in the two respective residential communities had decided to withdraw from the application and this was accepted by the Respondent. The Appellants submit that this amounted to those homeowners "opting out" of the application within the meaning of s 73(3) of the RLLC Act.
6. Accordingly, the Appellants submit that the Tribunal erred in making order 1 of its orders which they contend either applied to the homeowners that had withdrawn from the collective application, or alternatively, it is not clear that they have been excluded from the application of the orders which should accordingly be amended to make this clear.
7. The Respondent submits that this ground of appeal is misconceived. The Respondent submits the relevant orders of the Tribunal can only bind the parties to the matter. The Respondent accepts that the seven homeowners in question have opted out of the collective applications and that accordingly the Decision and orders of the Tribunal do not affect or apply to them.
8. In the result there does not seem any real controversy over this issue.
9. In our view there is no need for the orders to be altered as they can plainly only apply to those applicants who did not withdraw or opt out of the proceedings. Accordingly, we reject this ground of appeal.

Did the Tribunal lack jurisdiction because the Appellants raised a matter of federal law in their defence to the claim?

1. Once again, this ground raises a question of law as it concerns the jurisdiction of the Tribunal.
2. The background to this issue concerns the way in which the Appellants chose to defend the Respondent's applications and the central claim that the Appellants' site fee increases were excessive.
3. The Appellants declined to provide access to the Respondent to the Appellants' source financial documents relating to or justifying the fee increases and chose not to tender the file source financial documents in their possession which may have supported the reasonableness of the site fee increases. They chose not to do so principally on the basis of an assertion that the records were commercial in confidence documents belonging to the Appellants and it would be detrimental to the Appellants to reveal such source documents as a result.
4. The Tribunal did not accept this contention and stated the following at [22], [23] and [27] as follows: "[22] Secondly, the applicant's request to view the source documents on which Ms Hickling's analysis of the respondents' increase in operating costs was refused by the respondents. The bases of the refusal include privacy, cost, and obligations under the Corporations Law, none of which I find convincing. The same objections were dealt with in Gennacker Pty Ltd t/as Homestead Park v Bennet [2020] NSWCATAP 12 ('Gennacker') and dismissed. That case was an appeal from Bennett v Gennacker Pty Ltd t/as Homestead Holiday Park [2019] unreported published 1 August 2019, in which the Tribunal placed no weight on almost identical evidence from Ms Hickling. As submitted by the applicant, the Appeal Panel stated at paragraph 46 'The Appellant sought to justify its decision to withhold information from the Tribunal on the basis that to disclose information concerning its expenses would not be in its best interests. Whilst the Appellant was entitled to decide what level of detail it provided, it would follow that it must also accept the consequences of its decision. We note in passing that the Appellant did not elaborate on how the Appellant's interests would suffer if it disclosed more detailed financial information. If the Appellant was concerned about confidential information coming to the attention of a competitor it could have considered an application under s 64 of the NCAT Act (by which the Tribunal may restrict disclosure of information).' Consideration [23] In Gennacker the Appeal Panel also said at paragraph 44: '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 increase 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 the affected home owners.) The Tribunal was critical of the lack of detail of the increases by category of expense and the lack of independence of the Appellant's main witness and concerned about the evidence concerning 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.' … Conclusion [27] The authorities referred to show the correct approach to determine an application under section 71, is to consider all of the factors in section 74, including any explanation given by the operator, and decide with regard to those and any other relevant factors, whether the site fee increase is excessive. In my view the lack of any cogent evidence or explanation to establish that either respondent has incurred any particular level of increase at all, means the increase must be regarded as excessive. To find otherwise where the only party with the evidence to conclusively prove an increase in costs withholds that evidence, would not be fair and equitable in the operation of the community."
5. The Appellants contend that their decision not to produce source financial records or other financial material within its possession justifying its site fee increases was supportable on the basis of the following sections of the Corporations Act 2001 (Cth) as follows: 180 Care and diligence-civil obligation only Care and diligence-directors and other officers (1) A director or other officer of a corporation must exercise their powers and discharge their duties with the degree of care and diligence that a reasonable person would exercise if they: (a) were a director or officer of a corporation in the corporation's circumstances; and (b) occupied the office held by, and had the same responsibilities within the corporation as, the director or officer. Note: This subsection is a civil penalty provision (see section 1317E). Business judgment rule (2) A director or other officer of a corporation who makes a business judgment is taken to meet the requirements of subsection (1), and their equivalent duties at common law and in equity, in respect of the judgment if they: (a) make the judgment in good faith for a proper purpose; and (b) do not have a material personal interest in the subject matter of the judgment; and (c) inform themselves about the subject matter of the judgment to the extent they reasonably believe to be appropriate; and (d) rationally believe that the judgment is in the best interests of the corporation. The director's or officer's belief that the judgment is in the best interests of the corporation is a rational one unless the belief is one that no reasonable person in their position would hold. … (3) In this section: business judgement means any decision to take or not take action in respect of a matter relevant to the business operations of the corporation. 181 Good faith-civil obligations Good faith-directors and other officers (1) A director or other officer of a corporation must exercise their powers and discharge their duties: (a) in good faith in the best interests of the corporation; and (b) for a proper purpose. Note 1: This subsection is a civil penalty provision (see section 1317E). Note 2: Section 187 deals with the situation of directors of wholly - owned subsidiaries. (2) A person who is involved in a contravention of subsection (1) contravenes this subsection. Note 1: Section 79 defines involved. Note 2: This subsection is a civil penalty provision (see section 1317E). 182 Use of position - civil obligations Use of position-directors, other officers and employees (1) A director, secretary, other officer or employee of a corporation must not improperly use their position to: (a) gain an advantage for themselves or someone else; or (b) cause detriment to the corporation. Note: This subsection is a civil penalty provision (see section 1317E). (2) A person who is involved in a contravention of subsection (1) contravenes this subsection. … 183 Use of information - civil obligations Use of information - directors, other officers and employees (1) A person who obtains information because they are, or have been, a director or other officer or employee of a corporation must not improperly use the information to: (a) gain an advantage for themselves or someone else; or (b) cause detriment to the corporation. … (2) A person who is involved in a contravention of subsection (1) contravenes this subsection. … 184 Good faith, use of position and use of information - criminal offences Good faith - directors and other officers (1) A director or other officer of a corporation commits an offence if they: (a) are reckless; or (b) are dishonest; and fail to exercise their powers and discharge their duties: (c) in good faith in the best interests of the corporation; or (d) for a proper purpose. Note: Section 187 deals with the situation of directors of wholly-owned subsidiaries. Use of position - directors, other officers and employees (2) A director, other officer or employee of a corporation commits an offence if they use their position dishonestly: (a) with the intention of directly or indirectly gaining an advantage for themselves, or someone else, or causing detriment to the corporation; or (b) recklessly as to whether the use may result in themselves or someone else directly or indirectly gaining an advantage, or in causing detriment to the corporation. (2A) To avoid doubt, it is not a defence in a proceeding for an offence against subsection (2) that the director, other officer or employee of the corporation uses their position dishonestly: (a) with the intention of directly or indirectly gaining an advantage for the corporation; or (b) with the result that the corporation directly or indirectly gained an advantage. Use of information - directors, other officers and employees (3) A person who obtains information because they are, or have been, a director or other officer or employee of a corporation commits an offence if they use the information dishonestly: (a) with the intention of directly or indirectly gaining an advantage for themselves, or someone else, or causing detriment to the corporation; or (b) recklessly as to whether the use may result in themselves or someone else directly or indirectly gaining an advantage, or in causing detriment to the corporation. (4) To avoid doubt, it is not a defence in a proceeding for an offence against subsection (3) that the person uses the information dishonestly: (a) with the intention of directly or indirectly gaining an advantage for the corporation; or (b) with the result that the corporation directly or indirectly gained an advantage. 247A Order for inspection of books of company or registered scheme (1) On application by a member of a company or registered scheme, the Court may make an order: (a) authorising the applicant to inspect books of the company or scheme; or (b) authorising another person (whether a member or not) to inspect books of the company or scheme on the applicant's behalf. The Court may only make the order if it is satisfied that the applicant is acting in good faith and that the inspection is to be made for a proper purpose. …
6. As we understand it, the Appellants contend that s 247A of the Corporations Act means that the Respondent has no right to seek an order from the Court to inspect the books from the company as the Respondent or any of the homeowners are not members of the Appellants.
7. Further, the Appellants contend that where confidential documents belonging to a company are involved and where their release would reveal commercially sensitive material that could be of use to competitors, a director of a company is obliged pursuant to ss 180-184 of the Corporations Act not to reveal such confidential information belonging to the companies in question.
8. From this contention, the Appellants submit that they thereby raised a defence, or judiciable controversy, based on federal law. The Appellants cited the principles relating to what constitutes a "federal matter": see, for example, Moorgate Tobacco Co v Philip Morris Ltd (1980) 145 CLR 457; [1980] HCA 32; Felton v Mulligan (1971) 124 CLR 367; [1971] HCA 39, Fencott v Muller (1983) 152 CLR 570; [1983] HCA 12, Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; [1981] HCA 7, Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27, Rana v Google Inc (2017) 254 FCR 1; [2017] FCAFC 156.
9. According to the Appellants, once they relied upon this defence founded in federal statute, the result was that the entire matter between the parties constituted a single "federal matter". The next chain in the submission of the Appellants was that only a Court under the Constitution could deal with a federal matter and that the Tribunal was not a Court invested with federal jurisdiction to decide a federal matter: see Burns v Corbett [2018] HCA 15; Attorney-General for New South Wales v Gatsby [2018] NSWCA 254.
10. The Appeal Panel in Murphy v Trustees of Catholic Aged Care Sydney [2018] NSWCATAP 275 at [22] summarised the relevant principles as: "[22] Drawing from a raft of cases, the following non-exhaustive set of principles, relevant to this case, emerge: (1) Not every proceeding that is touched by a Commonwealth law is a federal matter. For instance, a matter that requires only the interpretation of a federal law will not render the proceedings a federal matter. Similarly, it is not sufficient if the federal statute arises in an incidental fashion: Felton v Mulligan (1971) 124 CLR 367 at 408 (Walsh J); [1971] HCA 39; Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457 at 476 (Stephen, Mason, Aickin and Wilson JJ); [1980] HCA 32; LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 at 581 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ); [1983] HCA 31. (2) The question of whether a federal matter arises is one of substance and not form: Australian Solar Mesh Sales Pty Ltd v Anderson (2000) 101 FCR 1; [2000] FCA 864 at [16] (Burchett J, Wilcox and Tamberlin JJ agreeing); Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 473 (Barwick CJ); [1981] HCA 7. (3) To identify the 'matter' it is necessary to identify the justiciable controversy: Smith v Smith (1986) 161 CLR 217 at 237 (per curiam); [1986] HCA 36; Re Wakim (1999) 198 CLR 511; [1999] HCA 27 at [139] (Gummow and Hayne JJ). (4) It is sufficient if the matter could be decided by reference to the federal law, it is not necessary that the matter be disposed of in that way: Felton v Mulligan at 374 (Barwick CJ); Rana v Google Inc (2017) 254 FCR 1; [2017] FCAFC 156 at [21] (per curiam). (5) A federal issue may arise even where the parties have not directly asserted it, but where the court must nevertheless examine whether a right or duty under federal law exists: Moorgate at 476 (Stephen, Mason, Aickin and Wilson JJ). (6) A federal matter will arise whenever the right, duty or enforcement owes its existence to federal law: LNC at 581; Re McJannet; Ex parte Australian Workers' Union of Employees (Qld) (1997) 189 CLR 654 at 656-7 (per curiam); [1997] HCA 40. (7) It is not necessary for the form of relief sought to depend on federal law; it is sufficient if the source of the right or subject matter of the claim exists as a result of federal law: LNC at 581-2 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ). (8) A federal matter will also arise where the source of a defence is a federal law: Felton v Mulligan at 375 (Barwick CJ) and 408 (Walsh J); LNC at 581 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ). (9) Unless a federal issue is colourable, there is a federal 'matter': ie: the whole of the proceedings is a federal matter requiring the exercise of federal jurisdiction: Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd at 499 (Gibbs J); Felton v Mulligan at 373 (Barwick CJ) and 408 (Walsh J); Fencott v Muller (1983) 152 CLR 570 at 606 (Mason, Murphy, Brennan and Deane JJ); [1983] HCA 12; Smith at 237 (per curiam); Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559; [2001] HCA 1 at [7] (Gleeson CJ, Gaudron and Gummow JJ); Rana v Google Inc at [20]."
11. The central issue before us is whether or not the alleged defence being raised by the Appellants could be said to be "genuinely in controversy", bearing in mind the statement of the High Court in Citta Hobart Pty Ltd v Cawthorn (2020) 400 ALR 1; [2022] HCA 16 at [35] per Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ that a defence based on federal law is a federal matter if: "…the claim or defence be genuinely in controversy and that it give rise to an issue capable of judicial determination. That is to say, it is enough that the claim or defence be genuinely raised and not incapable on its face of legal argument."
12. In our view, this is not a case where the Appellants have truly or genuinely raised a defence based on federal legislation. The Appellants merely declined to provide evidence of their financial records as they apply to the operation of the residential communities in question. They purported to justify this choice on the basis of, firstly, s 274A of the Corporations Act and then, secondly, ss 180-184 of the Corporations Act. These provisions were purportedly relied upon in answer to concerns of the Tribunal as to the Appellants failing to provide cogent evidence as to their increased costs of operation.
13. In our view, the fact that s 274A of the Corporations Act does not provide for a right beyond members of a corporation to apply to the Court for orders for access to the records of the company, is irrelevant for the issue that was before the Tribunal as to the cogency of the evidence put forward by the Appellants.
14. In our view, the alleged issue is not the subject of the justiciable controversy and does not turn this into a federal matter.
15. Nextly, it is not to the point that the directors of Appellants have duties under the Corporations Act. Such provisions do not of themselves prevent the Appellants from producing the records. In particular, as remarked by the Tribunal below, this could have been done along with an application for confidentiality orders in respect of the alleged confidential information of the Appellants pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW).
16. The basis for the Tribunal's decision was that it was making a determination about a factual issue on the evidence put before it. The rationalisations by the Appellants for their decisions about what evidence to put forward, do not affect the probative value of the evidence they tendered and do not turn the case into a federal matter.
17. In conclusion, in our view, the provisions of the Corporations Act referred to by the Appellants did not engender a matter of genuine controversy between the parties and did not raise any question requiring judicial determination in the first instance proceedings. They are entirely irrelevant to the issue to be determined by the Tribunal.
18. Accordingly, we reject this ground of appeal.

Did the Tribunal have jurisdiction to make orders under the RLLC Act?

1. As noted above, a question of jurisdiction raises a question of law.
2. Section 71 of the RLLC Act provides that the RLLC Act does not apply to an arrangement in respect of an occupation agreement to which the Holiday Parks (Long-term Casual Occupation) Act 2002 (NSW) (Holiday Parks Act) applies.
3. Section 4 of the RLLC Act under "Definitions" states that a homeowner means "a person who owns a home on a residential site in a community that is the subject of a site agreement (whether or not the person resides at the site) … but does not include any person, or any person of a class, excluded from this definition by the regulations". The Residential (Land Lease) Communities Regulation 2015 (NSW), cl 6 states that "the standard form of site agreement is the form set out in schedule 1".
4. The Appellants contend that the evidence of the Respondent in their own documents before the Tribunal showed that the following Applicants had long-term occupation agreements under the Holiday Parks Act, which meant that the Tribunal lacked jurisdiction to make orders under the RLLC Act: at Hacienda (Whitty 2, 20 and 21, Maitre 3, Bietel 11, Williams 27, Bevis 29 and 30, Symons 31, Wiese 33, Collins 34, Orme 35, Green 50, Day 61, Dickenson 62, Stewart/Davidson 75, Waldron 82 and 83, Pankhurst 89, Engelhardt 92, Kokshoom 94, Knight 98, O'Brien 99, Kelso 101, Hill 103, Bulluss 107, English 108, Chapman 112, Brown 137, Hunter 158, Parsons 166, Stanard/Thurtell 168, Thurtell 169, Roods 172, Swan/Martens 174, Whitmore 177, Sayer 183, Foley 184, Edmundson 185, Muir 187, Murphy 189, Zambelli 190, Conroy 199) and at Homestead, (Johnson 2, Ward 4, Simpson 9 and 48, Spracklen 17, Tupea 23, Lincoln 36, Towell 41, Burnett 46, Slater 55, Jordan 57, Gunders 59, Levy 61, Harvey 62, Anderson 74, McLean 82, Stokes 85, Hennessy 86, Lawrence 89, Hume/Saddler 91, Miller 94, Small 95, Browne 108, Wheeler 112, Tozer 122, Dwyer 132, Sussex 139, Dalby 145, Bennett 147, Lee 172) (the Relevant Applicants).
5. The Appellants submit that the Relevant Applicants entered into occupation agreements under the Holiday Parks Act and received notices of occupation fee increases dated 20 January 2023. The remaining Applicants entered into site-agreements as homeowners under the RLLC Act and they received notices of site-fee increases dated 20 January 2023.
6. In this regard, the Appellants referred to documents before the Tribunal where for the Relevant Applicants notices of increases in "occupation fees" rather than site fees were before the Tribunal along with a notation on the Applicants' documents in the Respondent's handwriting that states that only 20 at Hacienda and only 6 at Homestead had "res site agreements", being a reference to residential site agreements pursuant to the RLLC Act.
7. The Appellants submit that this clearly shows admissions by the Respondent that the Relevant Applicants did not have site agreements under the RLLC Act but had occupation agreements pursuant to the Holiday Parks Act and accordingly the Tribunal lacked jurisdiction to make orders under the RLLC Act in respect of the Relevant Applicants.
8. The Appellants submit that the Tribunal also was wrong to conclude at [8] that "there was no objection made to the Tribunal's jurisdiction by the [Appellants]".
9. The Respondent submits that the statement by the Tribunal at [8] was accurate. Further, that whether or not the relevant agreements were regulated by the Holiday Parks Act or the RLLC Act raises an issue dependent on findings of fact about matters that were not put in issue at first instance. In particular, relying on Hacienda Caravan Park Pty Ltd v Dodge [2019] NSWSC 1296, the Respondent contends that the question of whether or not an Applicant may have been entitled to a residential site agreement under the RLLC Act is dependent on substance and not form and depends on the facts of an individual homeowner's use and occupation of the site.
10. The Respondent submits that by not taking the point at first instance, the Appellants should be taken as having accepted that all the Applicants were homeowners under the RLLC Act and had the point been taken, the Respondent could have given further evidence demonstrating how the Relevant Applicants were homeowners under the RLLC Act. Accordingly, the Respondent submits that according to the principle in Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35 (Suntor v Gundowda) the Appellants should not be permitted to take the point for the first time on appeal.
11. The Respondent accepted that the limited evidence that was before the Tribunal in respect of the Relevant Applicants was unclear or not necessarily sufficient to demonstrate that the Relevant Applicants came under the RLLC Act rather than the Holiday Parks Act.
12. The transcript of the sound recording reveals the following relevant exchange relied upon by both of the parties: Ms Gilbert: "Page 75 in Ms Hickling's submission. Paragraph 47 and 48. It was just a concern because for site agreements, site fee increases to go ahead, we have to legally produce a site fee increase letter to the Tribunal to show that they actually" Member Priestley: "I don't think there's any contest from Ms Hickling that the people who are part of the representative application are not entitled to be here is there?" Ms Hickling: "I believe what Ms Gilbert's saying is that we've provided some copies." Member Priestley: "And you've taken the names out" Ms Hickling: "… is to show that some of the applicants are within a range of site fees that other people are already paying within the park and they didn't want their names identified. But I can point the member to where that particular document is related to a map in the park" Member Priestley: "Well, you don't really need the names do, We don't really need the names, do we Ms Gilbert? No, so it doesn't matter." Ms Gilbert: "No, no" Member Priestley: "Okay, well, so that's the end of that."
13. We have considered the above exchange in the context of the transcript overall and the evidence lead before the Tribunal. We have come to the view that it is not entirely clear that the Appellants, through their representative Ms Hickling, was clearly and knowingly conceding jurisdiction in respect of the Relevant Applicants given the material that was before the Tribunal.
14. In our view, it appears there was an innocent misunderstanding between the parties and the Tribunal over the significance and meaning of the above exchange that occurred at the Tribunal. We accept the submission from Ms Hickling to us that in her view, and certainly at the time, the discussion recounted by us above was in relation to information provided to the Tribunal at first instance which went to the issue of comparative fees for comparable sites, being a factor pursuant to s 74(e) that can be considered by the Tribunal in respect of the Respondent's application.
15. Accordingly, we accept that Ms Hickling was under the apprehension that the Tribunal's comment "that is the end of that" was a reference to an issue as to the documentation that would be needed to demonstrate the issue of comparable site fees and whether or not names would be needed. On the other hand, it would appear that Ms Gilbert, acting for the Applicants, and the Tribunal were referring to whether or not there was a contest as to all of the Relevant Applicants coming within the RLLC Act or not.
16. In this regard, we also accept the Respondent's submission that Ms Gilbert at the time was under the belief that the question of jurisdiction had been conceded by Ms Hickling.
17. Bearing in mind, the nature of the exchange recounted above and the fact that some of the documents before the Tribunal appeared to suggest that Ms Gilbert, as the representative of the Relevant Applicants, was conceding that there were no site agreements under the RLLC Act, we are satisfied that it was not unreasonable of Ms Hickling to fail to appreciate that perhaps the Tribunal and Ms Gilbert were exploring the extent to which the Relevant Applicants' position under the RLLC Act was put in issue or not.
18. Accordingly, we do not think this is a case where it is appropriate to apply the full force of the principle in Suttor v Gundowda: see, for example, Hacienda Caravan Park v Denley [2016] NSWCATAP 23.
19. Further, and in any event, we note that it is not appropriate for the Appeal Panel to overlook the question of jurisdiction on appeal purely on the basis that it was not raised below, or was conceded below at first instance. Relevant in this regard are comments of the Court of Appeal in SAS Trustee Corporation v Rossetti [2018] NSWCA 68 at [3]: "[3] The respondent was successful before the primary judge (Harrison AsJ). The STC has appealed from that decision. Although not raised by the parties, the first question which this Court must address is whether the Industrial Court had, and the Supreme Court now has, jurisdiction to hear the 'appeal' from the determination of the STC. It is uncontroversial that, where a point is taken as to jurisdiction, it is the duty of the court to determine that matter first. Usually that will turn on a question of law, but it may also turn on questions of fact. Even if the parties do not take the point, if a real issue as to jurisdiction suggests itself to the court, it must be addressed. The parties cannot confer jurisdiction on a court by consent. As explained in Cockle v Isaksen: 'The respondents showed no more desire than did the appellant to question the Court's jurisdiction to entertain the appeals. But for ourselves we were unable to perceive how ... an appeal in any of the present cases could lie to this Court, that is to say, unless that provision were considered invalid. In these circumstances we were not prepared to entertain the appeal simply because the parties wished us to do so.'" (Footnotes omitted)
20. Accordingly, the appeal will have to be allowed in part in respect of the Relevant Applicants. Given the state of the evidence it is not possible for the Appeal Panel to finally resolve the issue of jurisdiction and the issue of jurisdiction will have to be remitted for rehearing in respect of the Relevant Applicants.
21. The parties should be permitted to introduce further evidence. This is because the state of the evidence and the way in which the original hearing was conducted, leads the Appeal Panel to conclude that the Respondent, like the Tribunal, had the understanding that the issue of jurisdiction was not in dispute which may have influenced the evidence the Respondent chose to lead on the question of jurisdiction.

CPI "fall-back position" (ground 4)

1. The Tribunal at first instance held as follows: "[29] Putting aside the issue of whether any increases in an operator's profits should be considered when determining what increase is "necessary" to cover outgoings and operating expenses, neither respondent has established any actual or projected increase in costs. While it might in some cases be reasonable to assume with a CPI figure of 7% an operator has incurred some increase, the CPI cannot be regarded as a "fallback" position for operators. In this case the respondents had the opportunity to put precise evidence before the Tribunal of the level of increase they may have incurred, or have projected, but have chosen not to do so. It is not for the Tribunal to hazard a guess about what, if anything, that may or may not be. Accordingly, there should be orders; [30] The site fee increases in the notices dated 20 January 2023 are excessive. [31] The site fees must not exceed the level at which they were immediately prior to the increase in the notices dated 20 January 2023, for a period of 12 months commencing 1 April 2023. [32] The respondent is to refund all site fees overpaid since 1 April 2023."
2. The Appellants claim that this reveals an error of law and the issue for the Appeal Panel is whether it raises a pure question of law. The question concerns whether, despite the absence of evidence of an actual increase in the expenses of an operator the Tribunal must nevertheless: first, conclude that an increase that is equal to or less than the increase in the Consumer Price Index (all groups index) for Sydney (CPI) is not excessive (s 73(a)); and second, be satisfied that an increase that is less than the CPI would be less than that needed to cover any actual or projected increase in the outgoings and operating expenses for the community (s 73(4)).
3. We accept that this ground of appeal raises a question of law about the construction of a statute: Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [71]-[74]; Craig v South Australia (1995) 184 CLR 163 at pp 177-178; [1995] HCA 58 at [12]; and Commissioner of Police, NSW Police Force v Hogan [2024] NSWCATAP 77 at [22]. Sections 73 and 74 of the RLLC Act relevantly provide as follows: 73 Orders as to excessive increases in site fees … (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. 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.
4. Under s 74, the Tribunal may consider "any or all" of the enumerated factors, including CPI increases. Section 73(4) prohibits the Tribunal from making an order lower than any actual or projected increase in expenses (established to the satisfaction of the Tribunal) of operating a community since the previous increase.
5. The ultimate question under s 73(4) is, what is the amount of "any actual or projected increase" in the "outgoings or expenses for the community" in the period since the last increase? Similarly, it should be noted that one factor in s 74 is "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) and site fees for the community."
6. In contrast to these factors, it should be noted that the CPI is not a measure based on a residential community operator's costs. It is based on increases in the price of a representative sample of goods and services purchased and used by consumers. Accordingly, it follows, that evidence of CPI cannot be regarded as an accurate reflection of a particular residential community operator's costs. In other words, a residential community operator's costs may not have increased even though CPI has increased.
7. Accordingly, in our view, as a matter of statutory construction, if the legislator had intended that CPI be a "fall back" position that should be utilised so as to permit increases in site fees in the absence of any other evidence, it would have used different language in s 73(4). The language in s 73(4), in our view, still principally focuses upon the question of whether or not site fee increases are excessive by reference to actual or projected increases in outgoings and expenses. Whilst evidence of CPI would not be irrelevant to the Tribunal's task, on its own, it may not provide sufficient evidence for the Tribunal to answer the statutory question.
8. In our view, the language of the relevant sections of the RLLC Act do not support the proposition that where evidence may be lacking of actual or projected increases in outgoings and expenses, the CPI should be taken as the minimum increase or the fall-back position.
9. In conclusion, we reject the proposition that as a matter of construction, the CPI is a fall-back provision under the RLLC Act. Rather, it is simply one of the factors to be considered under s 74 in reaching a conclusion about what orders to make under s 73. In the result, we are not satisfied that the Tribunal made any error of law in the way contended for by the Appellants.
10. Accordingly, we reject this ground of appeal.

Relevance of projected increase (ground 5)

1. The way in which the Appellants put this ground of appeal was as follows: "Member Priestley erred in taking into account irrelevant considerations of projected increases, profits of the park operator and shareholdings in the Jonval Builders Pty Ltd. Member Priestley erred by taking into account and considering the operator was profits as being an irrelevant consideration and has misinterpreted the legislation."
2. We note that to raise a question of law, a matter must be said to be irrelevant in the requisite sense. That is to say, a matter is only irrelevant if the decision-maker has taken into account a matter that the statute expressly or impliedly forbids the Tribunal to take into account: Ballantyne v Workcover Authority of NSW [2007] NSWCA 239 at [113] per Basten JA. We are not satisfied that the ground raises a question of law, as opposed to cavils with the Tribunal's approach to the evidence and its fact findings. We are cognisant that in those circumstances we might consider granting leave to appeal on this ground. However, for the reasons that follow we are not satisfied that the ground has merit and would not grant that leave.
3. The Tribunal's reasons for decision do not contain any reference to consideration being given to the question of projected increased profits for the operators. None is suggested by the Appellants' submissions. Reference is only made to discussion during the hearing.
4. In the result, we are not satisfied that the Tribunal in fact took into account the alleged irrelevant matter in question.
5. The written submissions of the Appellants also referred to the Tribunal making a mistaken finding that Jonvale Builders Pty Limited was a shareholder in Gennacker Pty Ltd. The Respondent accepted that the evidence before the Tribunal demonstrates that Ms Hickling and Mr Willmott had all the shares in Jonvale Builders Pty Ltd, not Jonvale Pty Ltd which is the shareholder of Gennacker Pty Ltd, the First Appellant.
6. Nevertheless, we are not satisfied that this statement of the Tribunal affected the decision. The consideration of the shareholding in Jonvale Pty Ltd was in connection with the Tribunal's finding that Ms Hickling was not an independent witness of the financial position of the Appellants. The lack of independence of Ms Hickling was self-evident for other reasons. Relevantly, Ms Hickling was a Director of each of the Appellants, as the Tribunal stated at [21]. Ms Hickling's directorship of the Appellants clearly demonstrated her lack of independence which made it legitimate for the Tribunal to question the weight to be afforded to her opinion evidence.
7. Accordingly, we reject this ground of appeal.

Adequacy of reasons (grounds 6 and 7)

1. Grounds 6 and 7 involve the submission of the Appellants that the Tribunal provided inadequate reasons for its conclusions as to "comparable site fees" and what was called "nominal probative assertions" made by the Respondent.
2. The Tribunal's findings on comparable site fees are at [14]: "There is a fairly wide range of site fees, due to the times when site agreements commenced, and that some residents successfully challenged increases and others did not. There were no submissions as to how this impacts the issue of whether the site fee increases are excessive. It is just as likely to indicate some residents are already paying excessive site fees, than the site fee increases now objected to are not excessive."
3. We are prepared to accept that a ground of appeal that raises the failure to give adequate reasons raises a question of law: see, for example, Pollard v RRR Corp Pty Ltd [2009] NSWCA 110 at [67], Hermes Nominees Pty Ltd v Shepherd [2024] NSWCATAP 36 at [16]-[17], Commissioner of Police, NSW Police Force v Hogan [2024] NSWCATAP 77 at [21], Styles v Rowley [2023] NSWSC 1053 at [77], Lay v Soueidan [2023] NSWCATAP 310 at [6].
4. The Appellants contend that contrary to the statement at [14], the Appellants did seek to put submissions on the relevance of comparable site fees. In our view, the Tribunal was making a comment about the quality or relevance of the submissions being made and not that there were no submissions made on the part of the Appellants.
5. Accordingly, we see no error of law in the expression of the reasons of the Tribunal.
6. Nextly, the Appellants submit the Tribunal's reasons were inadequate in that they did not make reference to any consideration of points 14-23 of the notes which the Respondent submitted dated 25 August 2023, which details the comparative fees for sites of a similar size and locality by areas of the community relevant to the Applicants in the proceedings.
7. The principles relevant to adequacy of reasons has been explained by the New South Wales Court of Appeal in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 at [66]-[77]: also see Volkswagen Group Australia Pty Ltd v Saad [2022] NSWCATAP 133 at [58].
8. In particular, it is not necessary for a decisionmaker to detail each factor which he or she has found to be relevant or irrelevant. Nor is a decisionmaker required to make an explicit finding on each of the disputed pieces of evidence. It will be sufficient if the inference as to what is found is appropriately clear.
9. In our view, the statement of reasons starting from [11] is adequate.
10. In respect of the submission that the Tribunal's reasons were inadequate in the way in which they dealt with the Respondent's "nominal probative assertions", as we understand the submission, it is that the Tribunal should have not considered evidence filed by the Respondent outside the Tribunal's pre-hearing timetable for filing evidence or because such evidence lacked probative value.
11. In respect of the first point, we reject the submission. There is no evidence of the Appellants being prejudiced by any late filing of evidence.
12. In respect of the second point, it is clear from the Tribunal's reasons at [9] and [10] that the Tribunal considered that both parties had mingled evidence with the submissions filed with the Tribunal. The Appellants had objected to factual matters being asserted in the Respondent's submissions which should not be admitted because they were not supported by formal statements of evidence.
13. The Tribunal stated that such assertions in the Respondent's submissions were not determinative in any event. It stated at [9]: "Because the findings of fact that have been made are not contentious, nothing turns on that objection."
14. In our view, the above statement of reasons was perfectly adequate for dealing with the issue being raised by the Appellants in respect of the so-called "assertions" of the Respondent.
15. Accordingly, we reject these grounds of appeal.

Operators' costs (ground 8)

1. The Appellants submit that: "The Tribunal erred by finding that the costs of the operator had not increased where the probative statement provided by the operator provided a different position and another Senior Tribunal Member has found differently."
2. In our view, this ground of appeal does not raise a question of law and leave to appeal is required. The relevant finding of the Tribunal is at [27]: "The authorities referred to show the correct approach to determine an application under section 71, is to consider all of the factors in section 74, including any explanation given by the operator, and decide with regard to those and any other relevant factors, whether the site fee increase is excessive. In my view the lack of any cogent evidence or explanation to establish that either respondent has incurred any particular level of increase at all, means the increase must be regarded as excessive. To find otherwise where the only party with the evidence to conclusively prove an increase in costs withholds that evidence, would not be fair and equitable in the operation of the community."
3. Firstly, the decision being referred to by the Appellants as to site fee increases is the decision in Bennett v Gennacker Pty Ltd (Civil and Administrative Tribunal (NSW), Senior Member Charles, 30 July 2020, unrep). In our view, this decision of the Tribunal of 2020 cannot be probative of any factual matter relevant to the Tribunal's consideration of whether the site fee increase was excessive having regard to the factors in ss 73 and 74 of the RLLC Act.
4. The more substantial ground of appeal being raised here in the Appellants Outline of Submissions on Grounds of Appeal dated 23 January 2024 was that: "[255] Member Priestley erred in giving no or little weight to the evidence of the Appellants of the outgoings and the operating expenses for the community as provided by the Appellants has been 7.63% (Hacienda) at 7.52% (Homestead) higher than the prior period … [256] The decision of Member Priestley dated 3 November 2023 was not guided by or based on sound judgement or good sense such that no reasonable decision-maker would make such a decision."
5. The relevant passages of the Tribunal's decision are at [23]-[32]: "[23] In Gennacker the Appeal Panel also said at paragraph 44 '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 increase 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 the affected home owners.) The Tribunal was critical of the lack of detail of the increases by category of expense and the lack of independence of the Appellant's main witness and concerned about the evidence concerning 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.' [24] In Colin Davidson v Sea Change Living Pty Ltd [2023] NSWSC 292 ("Davidson"), Harrison AsJ considered the operation of section 73, and said at paragraphs 128 and 129; 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) (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. [25] Although that passage is not binding on the Tribunal it supports the approach taken by the Appeal Panel in Gennacker, and the decision below. [26] The respondents referred to the unreported decision of Senior Member Charles in RC 20/14239, published 30 July 2020, also involving Gennacker, and objections to site fee increases. It appears from the decision in that case that Ms Hickling gave evidence very similar to her evidence in this case, the Tribunal accepted it, and based on that evidence found the increases were not excessive. It appears the Tribunal in that case did not have the benefit of the Appeal Panel's decision in Gennacker, and Davidson had not been decided. The recent decision of a different Senior Member in Griffiths v Sea Change Living NSW Pty Ltd [2023] NSWCATCD 121 (25 September 2023), is further support for the conclusion I have reached. Conclusion [27] The authorities referred to show the correct approach to determine an application under section 71, is to consider all of the factors in section 74, including any explanation given by the operator, and decide with regard to those and any other relevant factors, whether the site fee increase is excessive. In my view the lack of any cogent evidence or explanation to establish that either respondent has incurred any particular level of increase at all, means the increase must be regarded as excessive. To find otherwise where the only party with the evidence to conclusively prove an increase in costs withholds that evidence, would not be fair and equitable in the operation of the community. [28] Having made the determination the increase is excessive, the Tribunal is then required under section 73 (4) to ensure it does not make an order 'that would result in an increase lower than that needed to cover any actual or projected 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.' [29] Putting aside the issue of whether any increases in an operator's profits should be considered when determining what increase is 'necessary' to cover outgoings and operating expenses, neither respondent has established any actual or projected increase in costs. While it might in some cases be reasonable to assume with a CPI figure of 7% an operator has incurred some increase, the CPI cannot be regarded as a 'fallback' position for operators. In this case the respondents had the opportunity to put precise evidence before the Tribunal of the level of increase they may have incurred, or have projected, but have chosen not to do so. It is not for the Tribunal to hazard a guess about what, if anything, that may or may not be. Accordingly there should be orders; [30] The site fee increases in the notices dated 20 January 2023 are excessive. [31] The site fees must not exceed the level at which they were immediately prior to the increase in the notices dated 20 January 2023, for a period of 12 months commencing 1 April 2023. [32] The respondent is to refund all site fees overpaid since 1 April 2023."
6. In our view, it was open to the Tribunal to place little weight on the mere opinion evidence of Ms Hickling, given her lack of independence, and in the absence of source financial documents in the possession of the Appellants which would have cogently established what the actual cost increases were for the Appellants. Such an approach is consistent with the authorities referred to by the Tribunal. As Lord Mansfield CJ stated in Blatch v Archer (1774) 1 Cowp 63; 98 ER 969 at p 970, when a court weighs and assesses evidence, it must bear in mind the extent to which it was in the power of one party to produce and in the power of the other to contradict evidence bearing on the facts in issue.
7. Further, in our view, it was open to the Tribunal, to not be satisfied with the evidence that was led going to such matters as increases in wages generally and increases in some costs such as rates, in the absence of evidence as to the operators' costs overall. In other words, whilst such evidence may suggest some level of increases in costs in some areas, had the operators provided details of their financial records, they may show that such cost increases are outweighed by cost savings in other areas of outgoings or expenses.
8. Fundamentally, the Tribunal in this case found that the Appellants had not provided sufficient cogent evidence of matters within the Appellants' own control or knowledge which could have assisted the Tribunal in reaching conclusions about the matters in ss 73 and 74 of the RLLC Act. This caused the Tribunal to not be satisfied with the Appellants' evidence overall as to the level of costs increases that had actually been incurred or are likely to be incurred in the operation of the residential communities.
9. In our view, such a conclusion was open to the Tribunal and does not demonstrate any clear mistake, factual error that was unreasonably arrived at, or demonstrates an unorthodox fact-finding process likely to produce an unfair result. Otherwise, in our view there is no injustice which is reasonably clear and this ground of appeal does not raise a question of principle or question of public importance which might have general application: see Collins v Urban [2014] NSWCATAP 17 at [84].
10. Accordingly, we decline to grant leave to permit this ground of appeal to be raised.
11. The written submissions make assertions to the effect that the Tribunal in dealing with the issue of the evidence as to the operators' costs failed to deal with articulated submissions put to it or was so unreasonable that no reasonable Tribunal could have arrived at the result that it did. Nothing further was put in support of such submissions.
12. In our view, for the reasons we have explained above, we reject these additional contentions. Accordingly, we reject this ground of appeal.

Procedural fairness (ground 9)

1. The Appellants submit that they were denied procedural fairness by not being invited to make submissions about a recent decision of the Tribunal. We accept that a denial of procedural fairness raises a question of law.
2. The Tribunal referred to Griffiths v Sea Change Living NSW Pty Ltd [2023] NSWCATCD 121 (Griffiths v Sea Change Living) in connection with its approach to the s 74 factors when it comes to information known only to the operator of a residential community. The relevant parts of the Decision are at [23]-[26] which we have already set out above.
3. The Tribunal did not base its Decision on the authority of Griffiths v Sea Change Living, it merely said that its conclusion was based on consideration of the Appeal Panel decision in Gennacker Pty Ltd t/as Homestead Holiday Park v Bennett [2020] NSWCATAP 12 and the obiter dicta of Harrison AsJ in Colin Davidson v Sea Change Living Pty Ltd [2023] NSWSC 292 and received further support from Griffiths v Sea Change Living.
4. As the parties clearly had the opportunity to make submissions on the state of the law prior to Griffiths v Sea Change Living and its lack of real significance to the reasoning process of the Tribunal's decision, we are not satisfied that the Appellants were denied any procedural fairness as outlined in this ground of appeal.
5. We note, the Appellants say they would have made submissions if given the opportunity had they known that Griffiths v Sea Change Living was going to be referred to by the Tribunal. Such submissions related to the factual findings made in Griffiths v Sea Change Living and comparing them with the factual issues in the case before us.
6. In our view, this misunderstands the nature of the precedents being considered by the Tribunal. Prior cases were being considered by the Tribunal for the statements of legal principles being pronounced by them rather than any findings of facts made by the Courts and Tribunals in question.
7. Accordingly, we reject this ground of appeal.

Appellants' evidence ground (ground 10)

1. Whilst the Appellants called this ground of appeal the "evidence ground", the gravamen of it was put in this way in the Appellants' written submissions: "The Tribunal erred in failing to respond to substantial and clearly articulated argument and not giving adequate reasons and in not giving effect to the guiding principle in considering the positions/determinations of other reasonable Tribunal decision-makers."
2. We accept that the question of failing to respond to "substantial and clearly articulated argument and not giving adequate reasons" gives rise to questions of law: see, for example, Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [24] per Gummow and Callinan JJ (Hayne J agreeing at [95]).
3. However, in our view, this ground of appeal is misconceived.
4. The Appellants in their submissions based this ground on the failure of the Tribunal to explain why it took a different approach to the evidence before it than other Tribunal Members did in different cases.
5. This ground involves the same misconception as discussed by us above when rejecting ground 9. The Appellants are clearly mistaken in the submission that the consideration of factual material in different cases can have any relevance to the consideration of the factual material presented in the evidence in the case before us. Each case turns on the particular facts before the Tribunal at the time.
6. Otherwise, the Appellants in their lengthy written submissions seek to reargue the case and dispute the finding that the Appellants had failed to satisfy the Tribunal that their operating costs and expenses had increased. This does not of course raise any question of law and leave to appeal would be required to overturn any findings of fact.
7. No basis has been demonstrated to justify challenging the Tribunal's fact-finding process. We are not satisfied that leave to appeal should be granted to permit the Appellants to challenge the fact-finding process of the Tribunal below.
8. Accordingly, we reject this ground of appeal.

Conclusion

1. In conclusion, in respect of the Applicants other than the Relevant Applicants leave to appeal will be refused and the appeal will be dismissed.
2. In respect of the Relevant Applicants, the orders are that the orders below will be set aside and the matter, in part, will be remitted back to the Tribunal for reconsideration in accordance with the law and our reasons on the question of whether or not the Tribunal has jurisdiction to make the orders sought under the RLLC Act.
3. We note the Respondent seeks an order for costs. We have decided to grant the parties liberty to apply for their costs of the appeal on completion of the hearing of the balance of the proceedings remitted to the Tribunal for reconsideration.

Disposition

1. The orders of the Tribunal are: 1. In respect of the following Applicants in proceedings RC 23/19944 with the site numbers indicated (Johnson 2, Ward 4, Simpson 9 and 48, Spracklen 17, Tupea 23, Lincoln 36, Towell 41, Burnett 46, Slater 55, Jordan 57, Gunders 59, Levy 61, Harvey 62, Anderson 74, McLean 82, Stokes 85, Hennessy 86, Lawrence 89, Hume/Saddler 91, Miller 94, Small 95, Browne 108, Wheeler 112, Tozer 122, Dwyer 132, Sussex 139, Dalby 145, Bennett 147, Lee 172) and in respect of the following Applicants in proceedings RC 23/19947 with the site numbers indicated (Whitty 2, 20 and 21, Maitre 3, Bietel 11, Williams 27, Bevis 29 and 30, Symons 31, Wiese 33, Collins 34, Orme 35, Green 50, Day 61, Dickenson 62, Stewart/Davidson 75, Waldron 82 and 83, Pankhurst 89, Engelhardt 92, Kokshoom 94, Knight 98, O'Brien 99, Kelso 101, Hill 103, Bulluss 107, English 108, Chapman 112, Brown 137, Hunter 158, Parsons 166, Stanard/Thurtell 168, Thurtell 169, Roods 172, Swan/Martens 174, Whitmore 177, Sayer 183, Foley 184, Edmundson 185, Muir 187, Murphy 189, Zambelli 190, Conroy 199) the orders of the Appeal Panel are as follows: 1. The appeal is allowed in part. 2. Orders 1-3 of 3 November 2023 are set aside. 3. That part of the case which deals with the jurisdiction of the Tribunal to make orders under the Residential (Land Lease) Communities Act 2013 shall be remitted to the Tribunal for reconsideration in accordance with the law and the reasons of the Appeal Panel with leave to adduce further evidence. 1. Otherwise, in respect of the other Applicants in proceedings RC 2023/19944 and RC 2023/19947, the appeal is dismissed. 2. Cost of the appeal are to be reserved with liberty to either party to seek costs following the finalisation of the remitted proceedings. 3. The Appeal Panel notes that the parties agree that the following Applicants in proceedings RC 2023/19944, Endicott 6, Caucao/Barreto 129, Yagsley 158 and the following Applicants in proceedings 2023/19947, Henry 162, Thompson 181, Dittman 193, Dodge 201, have opted out of the above proceedings pursuant to s 71(2) of the Residential (Land Lease) Communities Act 2013.

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: 29 May 2024