Harley Kismet Pty Ltd t/as Kismet Riverside Lodge v Hood

Preliminary issue

1. There is however one, important, preliminary matter to consider.
2. The Notice of Appeal was filed on 2 March 2018. It should have been filed by 19 February 2018. The appellant states that there had been a "slight error" with the Tribunal as to which form to use. The respondent submits that this is an inadequate explanation, and opposes an extension of time.
3. In Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22] the Appeal Panel stated that, generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: 1. the length of the delay; 2. the reason for the delay; 3. the appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and 4. the extent of any prejudice suffered by the respondent to the appeal.
4. The Appeal Panel also observed at [23] that 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.

Length of the delay

1. As to the length of delay, the Notice of Appeal was filed 14 days' late, this being an appeal in respect to "residential proceedings": see rr 3 and 25(4) of the Civil and Administrative Tribunal Rules 2014 (NCAT Rules); s 40 of the Civil and Administrative Tribunal Act 2013 (NCAT Act). In Jackson, where the Appeal Panel refused to extend time, the Notice of Appeal was filed one day late.

The reason for the delay

1. As to the reason for the delay, the appellant submits that it was advised on 12 February 2018 by an officer of the Tribunal's Registry to file "a form called 'miscellaneous'". That officer apparently telephoned the appellant on 20 February 2018 and "advised" that "the wrong form and advice [had been] given at that time". It is said that the Registry officer made a note to the Tribunal file "of the above correspondence, being the reason of delay in lodging the appeal". We agree with the respondents that no adequate explanation has been provided by the appellant. First of all, that file note is not in evidence. Secondly, there is no explanation why an attempt was not made to file the "miscellaneous" form in the eight day period between 12 and 20 February 2018, or what steps the appellant took to consider its position in that time. Thirdly, we note that it was claimed by the respondent, and not denied by the appellant, that the appellant has been a party to a number of proceedings at the Tribunal previously, which gives rise to an inference that the appellant was somewhat familiar with the Tribunal practices and procedures, including time limits.
2. We place no weight on the respondents' submission that no adequate explanation has been provided by reason of the appellant not having knowledge and understanding of legislation necessary to enable the lawful exercise of their functions: RLLC Act, s 54; RLLC Act, Sch 1, (Rules of conduct). That Schedule, in terms, only requires the park operator to have knowledge and understanding of the RLLC Act and regulations under that Act, and the Local Government Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005 (or its replacement), as in force from time to time. There is no requirement to have knowledge and understanding of the NCAT Act or the NCAT Rules, which is where the Tribunal's requirements for filing applications and appeals are set out.
3. We consider that this is a matter where it is appropriate to go further into the merits of the appeal as the explanation for the delay is less than satisfactory. For the reasons we explain below, we consider that this militates against granting an extension of time to file the Notice of Appeal.

The extent of any prejudice

1. Finally, in relation to the extent of any prejudice suffered by the respondent to the appeal, we accept that there is some prejudice being suffered by the respondent in being denied access to the appellant's electricity accounts.

Conclusion

1. When all these matters are considered cumulatively, we consider that we should not grant the extension of time sought. It follows that the appeal must be dismissed.
2. As noted above, in considering whether or not to extend the time for filing the Notice of Appeal, we have considered the appellant's submissions on the issues it raised in its Notice of Appeal.
3. We make the following observations.

Merits of appeal in respect of Order 1

1. It was an agreed fact before the Tribunal that the method of calculating the service availability charge (SAC) was the same under both the RLLC Act and the RP Act, and that there is a maximum amount of 70% of the relevant local area's retailer SAC (see Decision, par [6]).
2. The appellant asserts that the calculation was incorrect, because the Tribunal erred in finding that the appellant was not supplying more than 60 amps of electricity "at the residential site 17" (par [14]). This is not an error of law, and the appellant accepts in his Notice of Appeal that this is an error for which leave to appeal is required. In support of leave, the appellant submits that he may have suffered a substantial injustice as the decision was not fair and equitable, and was against the weight of the evidence.
3. Where an appellant is not legally represented, it is appropriate for the Appeal Panel to consider whether the grounds of appeal raise a question of law: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. In Prendergast, the Appeal Panel set out a non-exhaustive list of questions of law that might arise from Tribunal decisions. This issue does not raise an issue of law, nor is one claimed. Accordingly, had we extended time for filing the Notice of Appeal, the appellant would have required leave of the Appeal Panel to argue this ground: s 80(2(b) of the NCAT Act.
4. The appellant submits that the Tribunal erred in finding that the correct interpretation of the law regarding supply is that it "means the power that is actually supplied to the site itself". In support of this argument the appellant relies on factsheets, Regulations and guidelines. The respondents submit, and the Appeal Panel accepts, that this has considered in in a number of Tribunal decisions including Zova v Grasuelin Pastoral Company Pty Ltd t/as Macquarie Lakeside Village [2008] NSWCTTT 1404; Batts v RV Parks Australia Ltd [2010] NSWCTTT 397.
5. In Zova the Tribunal considered the issues of availability of supply versus actual supply were central to the dispute. The park owner (operator) claimed that they were able to supply 20 amps from the distribution box to the site. However, the supply leads to the sites were capable of carrying only 15 amps. The Tribunal held that the level of supply was 15 amps and that the service availability charge was therefore 20%.
6. In Batts the Tribunal stated: To be entitled to charge 100% of the service availability charge the park owner has to be able to supply 60 amps or more to an individual site. The Tribunal is satisfied that whilst there is an availability of supply at this level the actual supply to a site is less than 60 amps and accordingly the charge cannot be levied at 100%. The evidence suggests that the level of supply to an individual site falls within the range of 30 to 59 amps for which the park owner can charge 70% of the service availability charge.
7. An appeal to the District Court was dismissed, and the decision upheld.
8. These authorities were considered by the Tribunal in the Decision.
9. The respondent submits that the expert evidence of all of the three licensed electricians that was before the Tribunal shows that the level of supply of Amps of electricity to site 17 was less than 60 amps. This evidence was accepted by the Tribunal: see [27] of the Decision.
10. We see no error in the reasoning of the Tribunal in the calculation of the SAC. The authorities say that, in order to be granted leave to appeal, the appellant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a real challenge to an issue of fact. Ordinarily it is appropriate to grant leave to appeal only in matters that involve issues of principle; questions of public importance; an injustice which is reasonably clear; an error that is plain; a factual error that was unreasonably arrived at and clearly mistaken; or the Tribunal went 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.
11. We would not have been minded to grant leave. For the purposes of an application to extend the time for filing an appeal, we do not consider that this matter favours an extension of time.

Merits of appeal in respect of Order 2

1. The issue raised here is in relation to which Act applies; the RP Act or the RLLC Act. If the RLLC Act does not apply, then the Tribunal erred in making Order 2. This issue raises a question of law, and the appellant can appeal as of right (subject to the extension of time point).
2. In summary, the respondents say that the appeal is based on an erroneous assumption that the RP Act applies to the oral site agreement of 1 December 2014. The respondents submit that this appears to be the key challenge or error of law that is alleged by the appellant. The respondents submit that the Tribunal addressed jurisdiction at pars [8] an [9] of the Decision where it stated: 8. The NSW Civil and Administrative Tribunal has jurisdiction under the [RLLC Act]. The [appellant] contends that the application should be dismissed as "The [RLLC Act] in which the order [sic] are sought and the [RP Act] in which the applicant is under are two different Acts, so therefore the application should be dismissed. [sic] 9. Section 6(1) [of the RLLC Act] provides the [RLLC Act] applies to this 2014 oral site agreement. The [RLLC Act] commenced on 1 November 2015 and the site agreement existed immediately before commencement of the section.
3. The Member then set out s 6 of the RLLC Act which provides: 6 Application of Act to site agreements (1) This Act applies to all site agreements, whether existing immediately before or coming into existence after the commencement of this section, unless a provision of or under this Act provides otherwise. (2) Where this Act applies to a site agreement, it so applies despite the terms of the agreement or any other contract, agreement or arrangement, whether made before or after the commencement of this section. (3) This Act applies to a site agreement until it is terminated in accordance with this Act.
4. The respondent submits, correctly in our view, that: 1. the effect of ss 6(1) and 6(2) of the RLLC Act is that where a conflict arises between the RLLC Act and the terms of the site agreement, the RLLC Act prevails; and 2. the savings and transitional provisions are relevant only insofar as they clarify that existing agreements, including oral site agreements, remain in force once the RLLC Act commenced.
5. The respondents rely on the following clauses of Part 2 (Provisions consequent on enactment of this Act) of Sch 2 (Savings and transitional provisions) of the RLLC Act: 1. cl 3 (General savings) which provides that: Subject to this Act, each person, thing and circumstance appointed or created under the repealed Act or existing or continuing under that Act immediately before the commencement of the relevant provisions of this Act, continues to have the same status, operation and effect as it would have had if this Act had not been enacted. (emphasis added) 1. cl 5(1) (Existing agreements) which provides: Agreements entered into under the repealed Act that have not been terminated remain valid after the commencement of the relevant provisions of this Act, 1. the notation following cl 5(1) which states that: Accordingly, an existing agreement continues without the need to sign a new agreement once this Act commences.
6. In summary, the respondents submit that: 1. the effect of these savings provisions is that everything that fell under the jurisdiction of the repealed RP Act now falls under the jurisdiction of the RLLC Act. The words "subject to this Act" means if there is a conflict between the RP Act and the RLLC Act, the RLLC Act prevails; 2. the savings provisions confirm that the homeowners occupying sites under site agreements prior to the commencement of the RLLC Act do not need to sign a new site agreement as the agreement continues under the RLLC Act.
7. and submit that to assert that the transitional provisions bring about a result such that the (repealed) RP Act only applies (and not the RLLC Act) is an "absurd construction". In relation to the appellant's argument that the Code applies, the respondents submit that s 37 of the RP Act and the Code have no relevance: 1. given the RP Act was repealed and replaced by the RLLC Act on commencement on 1 November 2015, and 2. the Code, was not preserved (grandfathered) by the savings and transitional provisions of the RLLC Act.
8. We accept the respondents' submissions. We see no real substance in the appellant's submissions. For the purposes of an application to extend the time for filing an appeal, this ground of appeal is weak. We do not consider that this matter favours an extension of time.

Orders

1. For the above reasons, the Appeal Panel orders that: 1. the application for an extension of time in which to appeal is dismissed. 2. the appeal is dismissed. 3. the stay of the orders made in application RC 17/31606 is lifted.

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: 31 May 2018