Hockley-Brown v Metford Road Pty Ltd t/as Morpeth Gardens Village

NCAT Appeal Panel|2023-03-14

514, [2015] NSWCA 211 Safe Work NSW v Williams Timber PL and Easy Fall Guttering PL [2021] NSWCCA 233 Soulemezis v Dudley (Holdings) PL (1987) 10 NSWLR 247 (CA) Wainohu v NSW (2011) 243 CLR 181 Texts Cited: None cited Category: Principal judgment Parties: Glenda Hockley-Brown and Dennis Shane Brown (Appellants) Metford Road PL t/as Morpeth Gardens Village (Respondent) Representation: Counsel: L M Johnston (Appellants) T Bland (Respondent)

Solicitors: Jackson Solicitors (Appellants) Hunter Commercial and Property Lawyers (Respondent) File Number(s): 2023/00010031 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal NSW Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 16 December 2022 Before: M Gracie, Senior Member File Number(s): RC 22/02704 and RC 22/15646

Primary decision

The primary proceedings concerned a residential community in Tenambit, near Morpeth in the Hunter Valley in NSW. We note at the outset that both parties at primary hearing and on appeal did not dispute that there was a site agreement (signed by the owner but not the appellants) whose relevant terms to the matters in dispute governed the parties' relationship, although there were no express findings on the basis for that conclusion, and aspects of a later version of the site agreement, not signed by either party, were said by the appellants still to be under negotiation prior to signature by them.
In RC 22/02704 filed 13 May 2022 the applicant owner of the land on which the residential community was situated, operator of the community and respondent to the present appeal (the owner) sought termination of the site agreement with the current appellants and possession of the site for alleged breaches of the site agreement.
In RC 22/15646 filed 8 April 2022 the present appellants sought relief under various provisions of the Residential (Land Lease) Communities Act 2013 (NSW) (RLLC Act) not germane to determination of the current appeal. The thrust of the relief sought was to challenge the owner's entitlement to charge site fees until what was said to be required regulatory approval was obtained and provided to the appellants and to seek a site agreement without provision for increases (said to have been verbally represented) and with reduction until an NBN connection was provided. Termination notices to the appellants dated 11 October 2021 and 18 February 2022 for alleged non-payment of charges and other alleged breaches of the existing site agreement were sought to be declared void.
On 16 December 2022 the following primary orders were made (in summary) on the substance of the proceedings (with additional orders to accommodate submissions on costs): 1. In proceedings RC 22/02704, pursuant to s 122 of the RLLC Act that the site agreement dated 13 September 2021 (the site agreement) between the owner and the appellants is terminated "by reason of serious and persistent breaches of the site agreement by" the appellants identified in the notice of termination issued by the owner to the appellants dated 18 February 2022. 2. The appellants are to give vacant possession of their site by no later than 28 February 2023. 3. To the extent that the application in RC 22/15646 brought by the appellants against the owner has not already been determined and/or dismissed by previous Tribunal orders, the application in those proceedings is dismissed.
It was recorded that "Oral reasons for the decision were given". We shall discuss these below as they were recorded in a transcript of the primary proceedings.

Grounds of appeal

The original notice of appeal was filed within the period provided by the rules for filing an appeal, on 10 January 2023. Amended grounds of appeal were filed on 28 February 2023 having been served on 27 February 2023; the appellants said they were filed on 27 February 2023 but the formal date stamp shows one day later.
The amended grounds of appeal were prepared with legal assistance. They challenged the first two of the orders summarised above as follows (again in summary): Ground 1: Absence of procedural fairness particularised as follows: hearing the owner's counsel's opening submissions in the appellants' absence; not giving the appellants a fair hearing on their application to admit the transcript of a meeting at the village club house on 27 June 2022 (the disputed meeting transcript) - the challenge to rejection of the audio recording was not pressed on appeal since it was not before the primary member - thereby "infecting the Tribunal's decision not to admit that evidence"; not giving the appellants a fair hearing "because the Tribunal was discourteous towards them and dismissive of their attempts to defend the [owner's] application". Ground 2: Error in exercise of discretion not to admit into evidence the disputed meeting transcript. Ground 3: Error in finding that the appellants breached the "quiet enjoyment" clause of the site agreement and in making a termination order including on that basis "because it did not make the necessary findings of fact that would support that decision, or alternatively, gave inadequate reasons for that decision". Ground 4: Error in making a termination order because it did not consider, and so did not satisfy itself, that either breach that had been found was "in the circumstances of the case, sufficient to justify termination of the agreement", being a mandatory requirement under RLLC Act s 122(5)(c).
Leave to appeal was not sought in chief because the grounds were put forward as errors of law not requiring such grant of leave.
The appellants sought relief in alternative forms: a determination on the merits following the allowing of the appeal, leading to dismissal of the owner's primary application for termination of the site agreement and possession; remission for primary hearing by a differently constituted Tribunal with or without a ruling on admission of the disputed transcript.
In its reply to the original appeal filed 25 January 2023 the owner supported the challenged primary orders. It said that the appellants were simply trying to re-run the merits for which there was no justification, on an issue (the need for the owner to obtain approval for a manufactured home estate under s 68 of the Local Government Act 1993 (NSW)) which was not connected with the appellants' conduct that grounded the challenged orders and the findings on which those orders were based (being failure to pay charges and serious and persistent misconduct by breaches of the site agreement). In any event the s 68 issue had been correctly decided because only stage one of the three-stage development had been completed, so no final sign-off for the community was as yet required.
It will be seen that the comprehensive response by the owner was addressed to the original grounds in the original notice of appeal. The owner addressed the amended grounds of appeal in detailed written and oral submissions. The s 68 issue was not a ground in the amended notice of appeal.
We consider that grounds 1, 3 and 4 in the amended grounds of appeal do allege errors of law, on application of the principles discussed below. By reason of the decision to which we have come, we do not need to characterise ground 2.

Procedural matters

The owner attached to its response to the original notice of appeal copies of the transcript for both hearing days of 10 November and 16 December 2022.
On 25 January 2023 leave was granted to both parties for legal representation on the appeal.
At the time of final hearing of the appeal the stay of primary orders granted initially on 11 January 2023 and continued on 25 January 2023 but set aside on 13 February 2023 had been re-instated (on 24 February 2023) after the appellants paid outstanding site fees. The was continued without objection at final hearing pending final determination of the appeal once it was agreed that site fees would be paid so as to be two weeks in advance.
On 24 February 2023, when leave was granted to amend the original grounds of appeal, the appellants were ordered to pay forthwith the owner's costs of the appeal on the ordinary basis as agreed or assessed up to and including that day's proceedings but excluding preparation of the owner's written material. The owner's application for summary dismissal was refused. The appellants were granted leave to file and serve their amended grounds of appeal without prejudice to the owner's right to object to the raising of new grounds out of time.
At final hearing the appellants sought an extension of time to the extent that an objection to reliance on the amended grounds of appeal was made. There was said to be no relevant prejudice, no notification of objection since 28 February and the balance of justice favoured hearing the merits. We deal with extension of time and confirmation of leave to amend below.
The appellants also reserved a right to seek leave in reply to the extent that leave was said, by the owner, to be required. We have determined that issue relevantly in the appellants' favour without requiring consideration of a grant of leave.

Scope and nature of internal appeals

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) Civil and Administrative Tribunal Act 2013 (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: 1. Whether there has been a failure to provide proper reasons where they are required; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited by cl 12(1) of Sch 4 to the NCAT Act. In such cases, the Appeal Panel must first 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, the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) in Sch 4 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."
Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
In Collins v Urban, the Appeal Panel stated at [84] 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."

Procedural fairness

The content of the requirement to afford procedural fairness is dependent on what is required to achieve practical justice in the circumstances of the case and "As a general statement … dictates that a court give a party to litigation before it an opportunity to be heard before an order adverse to the party's interests is made": Safe Work NSW v Williams Timber PL and Easy Fall Guttering PL [2021] NSWCCA 233 at [29]; s 38(5)(c) of the NCAT Act.
The appellants were self-represented in the primary proceedings. On the appeal they made by their counsel a series of complaints about the conduct of the proceedings which they allege collectively (and some of them individually) constituted an absence of procedural fairness. Counsel in her written and oral submissions took us carefully through the complaints and there was the opportunity for the owner's counsel to respond in the detail and to the degree that he considered apposite.
We particularise in summary the complaints as follows, without setting out the page references and content of transcript and other material which were detailed in the oral and written submissions: 1. An invitation to the owner's counsel to expand on what the case was about in the absence of the appellants when the primary member had been told by the owner's counsel of a "problem" of which the owner had become aware at 5pm the preceding day, had been given an email which apparently referred to covid testing on the appellants, had no appearance from the appellants and had not at that point attempted to contact the appellants by telephone. 2. Allowing the continuance of what was then said on behalf of the owner, which began with the following: "Senior Member, to my mind - and I have been in this since April this year - this is another attempt for the [appellants] to use these proceedings as a flying dutchman and not get an order against them". What followed was a strong submission about the history of the proceedings. The criticism was not, as we understood it, directed at the force, or accuracy from the owner's viewpoint, of the submission but, rather, that it was permitted to proceed in such partisan terms without the attempt to contact the appellants and to enable them to hear it and to be in a position to answer it with their version of the history of the proceedings. 3. The rejection from the evidence of the disputed meeting transcript. 4. At various points the Tribunal was discourteous towards the appellants and dismissive of their attempts to defend the owner's application.
We now turn to assess what we have particularised.
In our view, there was no practical injustice in respect of the opening before the appellants were sought to be contacted. The primary member clearly sought a limited expansion of the matter from the brief opportunity in limited time that he had to look at the filed material, in order to understand context. He interrupted the partisan expansion to explore the history of the appellants' representation and how to contact them and to ask the nature of relief being sought. He then telephoned and made contact with the appellants. There was nothing in his tone or response at this point to indicate that the partisan characterisation of the procedural history had "poisoned the well" against the appellants, nor that the appellants would not be able to present their side of the procedural story, nor that he had given any ongoing significance to the partisan submission. He simply stated the way that he would proceed, which was logical, namely, first determine if the appellants' application should be dismissed for non-appearance (including the timing of the covid test) and then hear the owner's application ex parte if there was such a dismissal.
Indeed, the first issue raised by the primary member with the appellants was whether the proceedings could continue in their physical absence by electronic means (with their being on the phone or by AVL), everyone having been made aware by the owner that such means were available and of the owner's desire to press on by such means if possible. The appellants resisted such course because they considered themselves too ill (even prior to the test results) properly to present their case, then participated on a limited basis, and the primary member granted the adjournment after further extended debate.
By contrast, in our view there was procedural unfairness in effect (not in intent) in the way in which the disputed meeting transcript was discussed at the time of its rejection from evidence. This occurred at the adjourned hearing on 16th December 2022. The primary member engaged in a question-and-answer dialogue with the appellants' lay representative (Mrs Hockley-Brown) without making it clear why he was asking the particular questions and without fully articulating his concerns with the evidence and its provenance so as to enable a coherent and focused response, particularly with self-represented litigants. That response, if properly enabled by groundwork, could have encompassed submissions with reference to relevant evidence and to the parts of the disputed meeting transcript that made it relevant and otherwise probative.
A clear articulation of the primary member's concerns, to which the appellants could respond knowing what they had to meet, was essential because of the appellants' self-represented status. That was compounded because the question and answer dialogue jumped between various bases of concern: absence of service of the disputed meeting transcript and its lateness; unknown provenance of the USB from which the transcript was generated; unidentified legal difficulties (and possible illegality) depending on its provenance, and relevance. The relevance concern was not properly articulated as a concern even by way of the question and answer dialogue. Further, the primary member expressed his ruling part-way through the dialogue, without giving reasons at that point (even if provisional) that were capable of debate as the dialogue continued and eventually petered out and the hearing moved on. The dialogue was between the primary member and the appellants except on service. The basis of objection (in particular, whether the USB was improperly recorded) was not sought at any point from the owner.
We further consider that there were some aspects of the primary member's conduct of the proceedings that amounted to a dismissiveness of the appellants' attempts to defend the owner's application which, on objective assessment, denied them an adequate opportunity to be heard before orders adverse to them were made.
We say at once that such conduct does not appear to have been with intent or an appearance of bias (in the sense of pre-judgment) or actual bias.
We also do not agree with the appellants' submission about comments during the extended conciliation attempts on the first day of hearing and reliance on these comments does not form part of our reasons for our conclusion on this aspect. Those went no further than urging the appellants, in a repetitive discourse, to consider their options and in ultimately accepting their response on their perception of their options. The tone is of a genuine desire to explore all possible options for resolution.
Our concern is that the matters on day two of the hearing pointed to by the appellants, when taken together, had on objective assessment a tone of dismissiveness of the appellants' case. Central to these was the reference to "your imagined lawyer" towards the end of the appellants' submissions. This was said in a context where the following appeared to have been the facts known to the primary member: the appellants had previously had legal representation; rightly or wrongly, the appellants considered that they had been meeting their rental obligations by paying the rent amount into their lawyers' trust account pending the outcome of the dispute over whether or not they were obliged to pay rent given the incomplete (as they contended) status of regulatory approvals (the s 68 issue); that evidence was verbally challenged by the owner on the basis that no trust account statements were in evidence; there was no summons issued by the owner to produce such statements.
In our view this statement cast a tone of dismissiveness over the way that the primary member approached the testing of the appellants' preceding submissions.
At the conclusion of the hearing there was no interval between the close of submissions and the beginning of delivery of the extempore primary decision, despite the suggestion by the owner's counsel that there be a short time. This was in a context where early on that day of hearing there was an exchange with the appellants in which the primary member indicated that he had read "all this stuff" on or after the last occasion and that there was no need to re-read it before being taken to it. The tone of those remarks coupled with the immediate commencement of reasons reinforces the objective assessment of dismissiveness in the statements shortly before the appellants finished their submissions.
Accordingly, in our view there was procedural unfairness in two respects in the conduct of the primary hearing. While each of these is a distinct ground for upholding the appeal, we consider that the first reinforces our conclusion on the second. The absence of procedural fairness in rejecting the disputed meeting transcript in itself was an integer which reinforced the denial to the appellants of an adequate opportunity to be heard before orders adverse to them were made since that evidence was not taken into account.
We uphold the appeal on the ground of procedural unfairness in the manner that we have described, constituting a distinct error of law.

Adequacy of reasons

It is essential, where reasons are required or otherwise provided, to expose the reasons for resolving a point critical to the contest between the parties but the manner in which that obligation is discharged varies according to the nature of the jurisdiction being exercised, the court or tribunal exercising it and the subject matter being determined: Soulemezis v Dudley (Holdings) PL (1987) 10 NSWLR 247 (CA) at 259, 270-272, 280-281; Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme (2003) 216 CLR 212 at [40]; Wainohu v NSW (2011) 243 CLR 181 at [58]; NSW Land and Housing Corp v Orr (2019) 100 NSWLR 578, [2019] NSWCA 231 at [65]-[77]; see also s 62(3) of the NCAT Act which sets out the content when reasons are requested.
A failure to deal with evidence may also in the appropriate circumstances be characterised as a failure to engage with the case put by a party. It is generally not mandatory to consider particular evidence: Rodger v De Gelder (2015) 71 MVR 514, [2015] NSWCA 211 at [86]; Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443, [2012] NSWCA 244 at [15] per Basten JA (McColl and Macfarlan JJA agreeing). Further, at common law, where a decision-maker ignores evidence which is critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the decision-maker, this is an error of law because the reasons are thereby rendered inadequate: Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [62]-[63]; Eadie v Harvey [2017] NSWCATAP 201 at [61]-[62].
In NSW Land and Housing Corp v Orr (2019) 100 NSWLR 578, [2019] NSWCA 231 at [65]-[77], the Court of Appeal made it clear that, while the degree of complexity required for reasons (including reference to the evidence) differs according to the nature of the proceeding and the decision-maker, there is a "minimum acceptable standard" with "certain minimum characteristics" that requires the decision-maker to expose why it reached the decision it did, so that a losing party, in particular, has the basis to understand why it lost, if there is an avenue for challenge and to enable an appellate body to understand and assess whether the decision was correct: "Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it.": per Mahoney JA in Housing Commission of NSW v Tatmar Pastoral Co PL [1983] 3 NSWLR 378 (CA) at 386, cited in Orr at [74].
The appellants challenged two aspects of the primary conclusions on these grounds. One of the conclusions, on quiet enjoyment, was an integer in the other conclusion, being circumstances sufficient to justify termination.
The appellants comprehensively analysed the primary conclusion that Mr Brown's alleged conduct constituted a breach by the appellants of the obligation not to disturb the quiet enjoyment of other residents in cl 14 of the site agreement and in ss 36-38 of the RLLC Act and the community rules. The core of the analysis was to the effect that there were inadequate reasons to establish the conclusion of breach, on which the owner bore the onus. This was because the primary decision did not make findings that preferred the evidence of the owner's witnesses on the conduct allegations against the denial of those allegations and explanation for his walks (health reasons) in the evidence of Mr Brown, when neither party chose to cross-examine the other's witnesses and the allegations were of a serious nature, with very serious consequences, that required a high quality of probative material to satisfy the onus: Briginshaw v Briginshaw (1938) 60 CLR 336, [1938] HCA 34 esp at 360-364.
The appellants also drew attention to the requirements for reasons, in s 62(3)(a) and (c) of the NCAT Act, respectively to set out "the findings on material questions of fact, referring to the evidence or other material on which those findings were based" and "the reasoning processes that [led] the Tribunal to the conclusions that it made".
We respectfully agree with the appellants' analysis. Absent wager of law that was abolished centuries ago, sheer numbers of witnesses are not a substitute for findings as to why their evidence is to be preferred. This is the case irrespective of absence of cross-examination. To make express findings is all the more required when the allegations are serious, with very serious consequences, and the party who bears the onus chooses not to cross-examine. (We leave for another appropriate occasion to consider when it is sufficient and appropriate for serious allegations with very serious consequences to be accepted without cross-examination when there is denial on the written evidence.)
Accordingly, the appeal succeeds on establishing an error of law in the adequacy of findings and reasons for the primary conclusion on breach of the quiet enjoyment obligation.
As already pointed out, breach of the quiet enjoyment obligation was an integer in another primary conclusion, being that (together with non-payment of rent) it was sufficient in the circumstances of the case to justify the termination of the site agreement by Tribunal order under s 122(5)-(7) of the RLLC Act.
The absence of adequate reasons for the conclusion on that integer is sufficient to conclude, without more, that there were inadequate reasons to justify the primary conclusion on termination and that the primary conclusion and the relief that flowed from it were founded in errors of law. The appellants however relied upon an additional error of law that supported the same outcome, with which we also agree.
Section 122 of the RLLC Act provides as follows: "122 Termination by operator for breach of agreement (1) The operator of a community may give a termination notice on the ground that the home owner has seriously or persistently breached the site agreement. (2) The termination notice must not specify a date for vacating the residential site that is earlier than 90 days after the day on which the notice is given. (3) The termination notice may specify a date for vacating the residential site that is before the end of the fixed term of the site agreement if it is a fixed term agreement. (4) For the purposes of this section, the home owner is not in breach of the site agreement for non-payment of a site fee unless the fee has remained unpaid for at least 30 days. (5) The Tribunal may make a termination order if it is satisfied that - (a) a termination notice was given under this section and the home owner has not vacated the residential site as required by the notice, and (b) the home owner has breached the site agreement, and (c) the breach is, in the circumstances of the case, sufficient to justify termination of the agreement. (6) In considering the circumstances of the case, the Tribunal may consider (but is not limited to considering) the following - (a) the nature of the breach, (b) any previous breaches, (c) any steps taken by the home owner to remedy the breach, (d) any steps taken by the operator of the community about the breach, (e) the previous history of the home owner's occupation of the residential site. (7) The Tribunal may refuse to make the termination order if it is satisfied that the home owner has remedied the breach."
The appellants said that the primary reasons were inadequate because they did not draw a conclusion based on adequate findings that fulfilled the Tribunal's obligation to be satisfied on the matters in s 122(5)(c) of the RLLC Act, including the extent of any consideration of the matters in s 122(6).
We accept that the use of "and" between each sub-paragraph of s 122(5) of the RLLC Act strongly indicates that the requirements are cumulative. We also accept that these requirements are mandatory considerations before the Tribunal can reach the required satisfaction that empowers it to consider whether it "may" make a termination order. In other words, the use of "may" does not make discretionary that the Tribunal is satisfied on each of the matters in the sub-paragraphs.
The foregoing appears to us to be the meaning of the relevant statutory provision and its elements in its context which takes into account the object and purpose of the RLLC Act: Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 esp at [78] and later authority. It requires a separate consideration, even for found breaches, of whether the serious consequence of taking away the site for someone's home should follow the finding of breach and issue of a valid termination notice.
We further agree with the appellants' submission that the primary reasons do not, on their face, show consideration, let alone satisfaction, of the requirement in s 122(5)(c) of the RLLC Act. We add, consistent with the appellants' submission, that there was no indication of the extent to which (if any) there was consideration of the matters in s 122(6) or other matters justifying a termination order in the circumstances of the case.
This absence of express consideration of s 125(5) and (6) of the RLLC Act is curious given that the reference to s 122(5)(c) of the RLLC Act, in relation to findings that an alleged breach - installation of an unapproved structure by the appellants - was not sufficiently made out, showed the primary member's awareness of the requirement.
It is also curious given the strong discussion in the day two transcript between the primary member and Mrs Hockley-Brown for the appellants of the appellants' belief that they were in effect accumulating the rent in their then solicitor's trust account pending the outcome of their challenge in the proceedings to their obligation to pay rent given what we have called the s 68 issue. It is also curious given the payment of rent to the owner leaving a relatively small amount outstanding of $2,287.13, which in itself post-dated the termination notice.
Rather, the discussion of unpaid rent in the primary reasons occurred in the context of findings that the failure to pay was serious and persistent, being language which related to a finding that the notice was issued on a valid ground in respect of non-payment of rent: s 122(1)) of the RLLC Act. But this was not then translated into reasons which supported findings that justified the exercise of the Tribunal's power under s 122(5)(c) in the circumstances of the case to make the termination order sought.
There was no discussion in the primary reasons of how the found breach of the quiet enjoyment obligation - clearly a circumstance of the case - factored into the reasons for making a decision that a termination order was justified.
We therefore uphold the appeal on the ground of inadequacy of reasons in the manner that we have described, constituting a distinct error of law.

Exercise of discretion to refuse to admit evidence

We do not see the need to characterise this ground. Given our decision on other appeal grounds and to remit the proceedings, it is appropriate to allow the new primary decision-maker to exercise discretion without further comment on the earlier exercise of discretion.

Amended grounds of appeal: time period for filing and extension of time

We do not need in the present appeal to enter into any controversy over the application of time restrictions on filing an appeal to amended grounds of appeal where leave is granted for the amendment. The leave was without prejudice to the respondent's right to object to the new grounds of appeal.
Principles governing the exercise of the discretion to extend time under s 41 of the NCAT Act have been established in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]: 1. is there proof that strict compliance will work an injustice on the applicant; 2. in the context of a pending appeal, the expiration of the period in which to appeal gives a vested right to retain the decision in question, with the consequence that the time for appealing will not be extended unless the proposed appeal has prospects of success; 3. it will usually be necessary to consider: 1. the length of the delay; 2. the reason(s) for the delay; 3. the applicant's prospects of success, that is, whether there is a fairly arguable case; 4. the extent of any prejudice suffered by the opponents if an extension was granted; 1. if the explanation for the delay is less than satisfactory and/or if the opponent has a substantial case of prejudice, it may be necessary for the applicant to show substantial merit, not just that the appeal is fairly arguable.
Principles governing leave to amend (in this case, confirmation of such leave) attract similar criteria in the present circumstances.
It seems to us that this is a strong case for exercising the discretion to extend the period of time within which to file the amended grounds of appeal to the date of the orders in these proceedings that confirm the grant of leave to rely upon such amended grounds.
The period of delay is relatively short and includes the Tribunal vacation over the Christmas period in which it appears that the formerly self-represented appellants obtained legal assistance.
As can be seen from these reasons, the appellants have more than a clearly arguable case on the amended grounds.
There was no evidence of prejudice to the owner, particularly when there was evidence that the appellants had been paying their site fees or rent into trust pending the outcome of the proceedings and (irrespective of that matter) when required had paid site fees up to date. When pressed in closing submissions, the owner's counsel could not point to any relevant objective prejudice. The owner was clearly prepared to meet the amended grounds of appeal which did not give rise to new factual material beyond that at the primary hearing plus the transcript of that hearing. Given their nature and the length of time that the amended grounds of appeal had been notified, one would expect nothing less than such preparation by the owner. For the same reasons there was quite properly no adjournment sought and no basis for an adjournment.
Not granting leave to rely upon legally-formulated grounds would clearly work an injustice on the appellants in the circumstances of this case.
We consider it appropriate to confirm the grant of leave to amend given the reservation of objection to filing in the original grant of leave and to extend time to the date of the orders we make in respect of such confirmation.

Alleged errors of fact

There is accordingly no need to consider the appellants' arguments in reply on the alternative grounds of appeal that require consideration of a grant of leave to appeal. Indeed, given what we propose as next steps below, it would be inappropriate for us to analyse the detail of the factual material provided to us.

Appropriate relief - the way ahead

Section 81 of the NCAT Act provides that, in determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal. The section sets out a list of available orders which is not exhaustive. That list includes allowing the appeal, setting aside the primary decision and remitting the whole or any part of the case to the primary level of the Tribunal for reconsideration, either with or without further evidence and in accord with the Appeal Panel's directions.
We consider it appropriate in this case to remit proceedings RC 22/02704. This will preserve the parties' appeal rights on what are potentially difficult questions of fact and law. A primary hearing is better equipped to determine such matters after the parties have the opportunity, hopefully now with the assistance of continued legal representation, to refine and as necessary update the evidence and submissions and to consider the form of hearing, including the need for cross-examination if some of the serious conduct allegations presently referred to as the basis for termination are pressed. To conserve resources as much as possible, there should be clear identification of existing material that will continue to be relied upon without duplication of such material.
The Appeal Panel has recently and comprehensively reviewed the authority on when a matter should be remitted to a differently constituted Tribunal: Chapman v Nicolosi [No 2] [2023] NSWCATAP 73 at [5]-[26]. Applying what is said there, we consider that in the circumstances of this case the matter should be heard by a differently constituted Tribunal. Although the Member did not make express credit findings, it is in the interests of justice that there is avoided any basis to suggest pre-judgment given the nature of the reasons for the decision in this appeal.

Orders

We make the following orders: 1. The appeal is allowed and orders 1 and 2 made 16 December 2022 in RC22/02704 are set aside. 2. Remit RC 22/02704 to the Consumer and Commercial Division for hearing by a differently constituted Tribunal on such evidence as the parties file and serve in accord with directions and the Rules for that hearing. 3. Direct that the parties may rely without re-filing and re-service on documents already filed and served in RC 22/02704 that are clearly identified in a table that is filed and served in accord with directions and the rules for that hearing. 4. Note that primary order 3 made 16 December 2022 and other final orders in RC 22/25646 remain in force and undisturbed by the outcome of this appeal. 5. Confirm the grant of leave to the appellants to rely upon the amended grounds of appeal filed 28 February 2023 and to the extent necessary extend the time for filing such amended grounds to and including date of these orders. 6. Order as follows in respect of costs of the appeal and the primary hearing: 1. Any application in respect of costs is to be filed and served within 14 days after date of these orders, accompanied by any further evidence and submissions in respect of costs. 2. Any further evidence and submissions in response to the documents filed and served under order 6(a) are to be filed and served within a further 14 days. 3. Submissions by each party on an application for costs are not to exceed five pages in length. 4. The Appeal Panel may dispense with a hearing and determine any application for costs on the basis of the written submissions and evidence provided. Any party who opposes this course should make submissions on this issue when complying with orders as to that party's submissions on the substantive costs application. If a hearing is not dispensed with, the parties will be advised of a date for the hearing of the application.

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: 07 June 2023

(2019) 100 NSWLR 578

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Judgment (15 paragraphs)

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Cited By (4)