Hughes-Mason v SES Village Pty Ltd

(1) Under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), the Appeal Panel has power to grant an extension of time in which to file an appeal. The discretion to grant an extension of time is unfettered under that section but it must be exercised judicially. It must also be exercised having regard to the statutory command in s 36 of the NCAT Act that the guiding principle for the NCAT Act "is to facilitate the just, quick and cheap resolution of the real issue in the proceedings".

(2) The discretion can only be exercised in favour of an appellant upon proof that strict compliance with the rules will work an injustice upon the appellant.

(3) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision, and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success.

(4) Generally, in an application for an extension of time to appeal, the Appeal Panel will be required to consider:

(a) the length of the delay;

(b) the reason for the delay;

(c) the appellant's prospects of success, that is usually whether the appellant has a fairly arguable case; and

(d) the extent of any prejudice suffered by the respondent (to the appeal).

(5) 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, namely, it may be relevant whether the appellant has a case that has more substantial merit than being fairly arguable.

1. As to the length of the delay, a delay of six days is relatively insignificant.
2. As to the explanation for the delay, Ms Hughes-Mason merely submits that she was not legally represented at the first instance hearing and that the failure to file her appeal in time was inadvertent, and premised on a misunderstanding that she had 28 days to file her notice of appeal (which is the time limit which applies to other types of decisions). No further details have been provided, and there is no evidence from Ms Hughes-Mason in relation to the matter. We agree with the submission of the operator that ignorance of the law is, on its own, not a satisfactory explanation. This militates against granting an extension of time.
3. Turning next to whether there is any prejudice to the operator, the operator submits that the notice of appeal was lodged after it had already taken steps to enforce the order, including making arrangements for re-leasing and relocation. It also says that it continues to suffer detriment while Ms Hughes-Mason resides within the community and continues to breach the conduct performance orders.
4. We acknowledge that there would be some prejudice to the operator in circumstances where, prior to the appeal being lodged, it had taken steps to enforce the termination order. However, in this instance, other than making a broad statement that it had made "arrangements for re-leasing and relocation", the operator has not provided any details, or supporting evidence, of the steps it took or of expenses incurred. The assertion that the operator has and continues to suffer prejudice while Ms Hughes-Mason resides in the park is a bare assertion unsupported by evidence. In such circumstances, we are not satisfied that an extension of time will result in any serious prejudice to the operator.
5. Finally, as will become apparent from our reasons below, we are satisfied that Ms Hughes-Mason's appeal has substantial merit, and that the application for termination of the site agreement should be dismissed.
6. Although the explanation for the delay is less than adequate, since the length of the delay is insignificant, no serious prejudice to the operator has been established, and the appeal has more substantial merit than being fairly arguable, we are satisfied that strict compliance with the rules will work an injustice against Ms Hughes-Mason. Accordingly, we have decided to extend time for lodgement of the appeal until 13 May 2025.

1. The operator operates a residential community in northern New South Wales.
2. Ms Hughes-Mason and the operator are parties to an agreement relating to site 39 in the community (the site agreement).
3. In 2023, the operator commenced proceedings in the Tribunal (the original proceedings) seeking various orders against Ms Hughes-Mason, including an order that Ms Hughes-Mason "carry out work on a dilapidated site or home" pursuant to s 43(2) of the Residential (Land Lease) Communities Act 2013 (NSW) (the Act), and an order for termination of the site agreement "for serious misconduct" pursuant to s 129 of the Act.
4. On 1 July 2024, the Tribunal issued its decision in the original proceedings. The Tribunal was not satisfied that the circumstances justified termination of the site agreement. It said at [74]:

"I am not satisfied that Ms Hughes-Mason intentionally or recklessly caused or permitted serious damage to any property in the community ... I accept that, most fortunately, only minor injuries were caused to the part-owner in a terrifying scenario. That injury was caused by unregistered guests, not Ms Hughes-Mason. Illegal drug activity at site 39 was only the subject of suspicions of the operator. I am not satisfied that Ms Hughes-Mason engaged in serious conduct in dealing in illicit drugs."

1. It went on to make twelve orders which can be summarised as follows.

(1) Orders 1 and 2 related to alteration works that had been carried out by Ms Hughes-Mason to her residence.

(2) Order 3 required Ms Hughes-Mason to register with the operator the attendance of any occupants or guests at site 39 prior to their entry into the community area.

(3) Order 6 required Ms Hughes-Mason to comply with the terms of the site agreement by not interfering with, and by ensuring that her guests and other occupants not interfere with, the reasonable peace, comfort or privacy of the community's residents.

(4) Order 7 required Ms Hughes-Mason not to cause, permit or allow other occupants of the site or her guests to "seriously or persistently threaten or abuse" the operator (or its agents employees or contractors) or any resident.

(5) Order 8 required Ms Hughes-Mason not to use the site for any illegal purpose.

(6) Orders 9, 10 and 11 required Ms Hughes-Mason to comply with the community's parking rules, to remove goods from the site and to keep the site tidy and free of rubbish.

(7) Orders 4 and 12 gave the operator leave to renew the proceedings if any of the performance orders were not complied with.

1. On 14 November 2024, the operator filed a renewal application in the Tribunal (the renewal application) alleging that Ms Hughes-Mason had not complied with all the orders made in the original proceedings. The operator sought an order that it be authorised to carry out works on the site and recover the reasonable costs from Ms Hughes-Mason, as well as an order for termination of the site agreement "for serious misconduct".
2. On 25 March 2025, the renewal application came before the Tribunal for a final hearing and on 23 April 2025, the Tribunal made orders (the termination orders) for:

(1) the immediate termination of the site agreement;

(2) Ms Hughes-Mason to give vacant possession of the site immediately; and

(3) the order for possession to be suspended until 23 July 2025.

1. In its reasons for decision the Tribunal noted that the operator had conceded at the hearing that if the Tribunal was to make an order terminating the site agreement, then it would not press its application to be permitted to carry out works and to recover from Ms Hughes-Mason the reasonable cost of those works (the work order application). At the hearing of the appeal the parties agreed that if the appeal is successful, then the proceedings would need to be remitted to the Tribunal for reconsideration at least in relation to the work order application.
2. On 13 May 2025, Ms Hughes-Mason lodged an appeal against the termination orders.
3. On 6 June 2025, the Appeal Panel made an order staying the operation of the termination orders until further order of the Tribunal or finalisation of the appeal, whichever is the earlier in time.

1. To succeed in an appeal, the appellant must demonstrate either an error on a question of law, which, except in an appeal from an interlocutory decision, may be argued as of right; or that permission (that is, "leave") to appeal should be granted to bring the appeal: NCAT Act, s 80(2).
2. In this appeal Ms Hughes-Mason has raised the following grounds of appeal.
3. The first ground of appeal is framed in Ms Hughes-Mason's written submissions as whether there was a failure to afford procedural fairness. However, as discussed with the parties at the hearing, in substance, the question raised by that ground is whether there was no evidence on which to make findings of fact.
4. The second ground of appeal is whether the Tribunal failed to provide proper reasons.
5. The third ground of appeal is framed in Ms Hughes-Mason's written submissions as whether the Tribunal took into account an irrelevant consideration. During the hearing we discussed with the parties that the written submissions relating to this ground also raise as a ground of appeal whether the Tribunal applied a wrong principle of law.
6. In Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [24]- [40], the Appeal Panel set out the principles concerning questions of law within s 80 of the NCAT Act. Applying those principles, we are satisfied that all of the grounds of appeal raise questions of law and thus leave to appeal is not required.

Was the wrong legal principle applied under s 129 of the Act?

1. This ground of appeal involves whether the Tribunal applied a wrong principle of law when it decided to terminate the site agreement.

1. In the original proceedings the application for termination of the site agreement was brought under s 129 of the Act. That provision empowers the Tribunal to terminate a site agreement on the ground of "serious misconduct" without the need for a termination notice to be given. In the renewal application the operator, in conformity with its original application, sought an order "for termination of the Residential Site Agreement for serious misconduct".
2. Thus, while the Act contains a range of provisions which empower the Tribunal to terminate a site agreement in different circumstances, it was common ground in the appeal that the application for termination in these proceedings had been brought under s 129 of the Act, and that the question before the Tribunal was whether the site agreement should be terminated under s 129.
3. Section 129 provides:

129 Application by operator for termination for serious misconduct

(1) The operator of a community may apply to the Tribunal for a termination order on the ground of serious misconduct, without the need for a termination notice to be given.

(2) The Tribunal may make the termination order under Division 3 if it is satisfied that a home owner (or any person who is occupying or jointly occupying the residential site) has intentionally or recklessly caused or permitted -

(a) serious damage to any property in the community, or

(b) injury to any person when lawfully present in the community, or

(c) the residential site to be used for any purpose that is illegal at common law or under an Act, or

(d) the operator (or the operator's agent or an employee or contractor of the operator or operator's agent) or any resident to be seriously or persistently threatened or abused.

(3) The termination order may take effect before or after the end of the fixed term if the site agreement is for a fixed term.

1. The term "serious misconduct" is not defined in the Act. However, we agree with Ms Hughes-Mason's unchallenged submission that in the context of s 129 the term takes its construction from s 129(2). That is, s 129(1) permits an operator to apply to the Tribunal for a termination order on the ground of "serious misconduct", and s 129(2) sets out the circumstances in which a termination order on the ground of serious misconduct may be made by the Tribunal. In other words, a termination order may only be made under s 129(2) if the Tribunal is satisfied that a homeowner (or any occupier of the residential site) has intentionally or recklessly caused or permitted one or more of the consequences set out in s 129(2)(a)-(d).
2. The term "intentionally or recklessly" is also not defined in the Act. When construing similarly worded termination provisions of residential tenancy legislation, the Appeal Panel and the Courts have said that the meaning of "intentionally or recklessly" is derived from common law: Faull v Commissioner for Social Housing for the ACT [2013] ACTSC 121 (Faull); Cure v Bridge Housing Ltd [2014] NSWCATAP 80 (Cure); Vidler v Compass Housing Services Co Ltd [2021] NSWCATAP 284. In our view this is also the case when construing s 129.
3. The Appeal Panel has said that in s 90(1) of the Residential Tenancies Act 2010 (NSW), the language of "intentionally or recklessly" suggests the element of mens rea in the field of criminal law: Cure at [46]. That is to say, the perpetrator's subjective state of mind is an element of liability.
4. Intent is an ordinary English word and should be given its ordinary meaning: Faull at [135] citing Cutter v The Queen (1997) 94 A Crim R 152 at 165-6. A person "intends" the commission of a crime where that person's aim or purpose is to bring about its constituent elements: Cure at [47].
5. Recklessness at common law requires some foresight that the prohibited consequences will eventuate and the action is nevertheless taken: Faull at [136]. A person is said to be reckless where that person acts with knowledge that a consequence is a probable (or in some cases possible) result of his or her actions: Cure at [48]. Whilst recklessness does not require an intention to cause a particular result, more is required than mere negligence, which depends on an objective standard of care and foresight that a reasonable person would exercise. By contrast, recklessness depends on possible consequences subjectively foreseen by the defendant: Australian Law Dictionary (3 ed) (Oxford University Press).

1. The Tribunal's reasons for the decision can be summarised as follows:

(1) Orders 3, 6, 7, 8 and 9 in the original proceedings (which it referred to as "the conduct performance orders") had been made in relation to "the steps to be taken by Ms Hughes-Mason regarding any engagement in serious misconduct at the community".

(2) The issue for determination was whether "the site agreement ought to be terminated for breach of the conduct performance orders" ([at 11]) and whether Ms Hughes-Mason "has sufficiently complied with the conduct performance orders so that a site termination order would not be justified" (at [14]).

(3) The purpose of the conduct performance orders "was to ensure [Ms Hughes-Mason] took steps to show that she did not intentionally or recklessly cause or permit ... any serious damage, injury to a person, use of the site for an illegal purpose or threat or abuse to the operator's agent, employee or contractor of the operator or operator's agent" (at [13]) and to "give Ms Hughes-Mason the opportunity to take specific actions to show that she wishes to protect the interests of fellow residents and community management" (at [14]).

(4) In the original proceedings the Tribunal was not satisfied that Ms Hughes-Mason was "a direct infringer" or that she had "intentionally or recklessly caused or permitted serious damage to any property in the community". It found that minor injuries had been caused by unregistered guests, not by Ms Hughes-Mason, and that illegal drug activity at the site was "only the subject of suspicions of the operator". The Tribunal had not been satisfied that Ms Hughes-Mason engaged in serious misconduct in dealing in illicit drugs at the site. The behaviour of Ms Hughes-Mason's visitors had led the community management and other residents to have serious concerns for their reasonable peace, comfort, privacy and at times safety and therefore the "most just" remedy was that Ms Hughes-Mason comply with performance orders "with respect to not permitting unauthorised and unregistered guests to attend her site" and in relation to the behaviour of authorised, registered visitors.

(5) Ms Hughes-Mason's breaches "have not been so direct but the problem is that s 129 extends liability to permitting any breaches".

(6) Given its ordinary meaning, "permit" includes to grant permission to do something, to consent to or tolerate some action or to allow the possibility of an action occurring".

1. After reviewing the evidence of the parties, the Tribunal made a number of findings which included that:

(1) Ms Hughes-Mason "deliberately misconstrued her obligation under conduct performance order 3 to regularly report visitors prior to entry to the community";

(2) Ms Hughes-Mason "displayed contempt for the purpose of order 3" and "disregarded efforts made for her to save her site arrangement";

(3) Ms Hughes-Mason gave "[n]o consideration ... to the position of the community operator or the concerns and fears of other residents that were raised during visitations of her unregistered and rambunctious visitors";

(4) The effect of Ms Hughes-Mason's lack of action "is that visitors persistently came at all times, behaved aggressively, caused an injury to at least one other employee and caused operator staff and residents to be in a constant and persistent state of fear while they were present";

(5) "The coming and going of many visitors for short period of times at all times of the day also enables the Tribunal to draw an inference that some illegal activity may have been occurring at Site 39. Police attendance was required on a number of occasions";

(6) "[T]he toleration, indeed even encouragement of these visitors by Mrs Hughes-Mason had the effect of causing fear in the community and employees";

(7) Ms Hughes-Mason "put her head in the sand as to the impact of the behaviour of her unauthorised visitors on her fellow residents and community staff";

(8) It was "not hard to envisage that whenever Ms Hughes-Mason had visitors present at her premises ... the rest of the residents in the community and the staff would be concerned and anxious wondering what might occur next".

(9) Ms Hughes-Mason's "lack of action was also reckless under s 129. Recklessness means acting with a conscious disregard of a substantial risk where the risk might be unjustified. Ms Hughes-Mason would have known harmful consequences might arise from visits but permitted their continuance despite being aware of that potential harm."

(10) The breaches of the conduct performance orders "were serious, not minor. Further, the evidence of multiple breaches justifies a finding that the breach was persistent".

"unlikely Ms Hughes-Mason would comply if further performance conduct orders were made. The continuing breaches over many years, the lack of regard for the orders made and the lack of intention to change her conduct lead me to be satisfied on weighing up the evidence that termination is justified in the circumstances of the case".

Did the Tribunal apply the wrong legal principle?

1. The appellant says that the Tribunal applied the wrong legal test because it made the decision to terminate the site agreement on the basis of breach of the conduct performance orders - specifically the order requiring her to register guests. It says this is an error because the test imposed by s 129(2) is not whether Ms Hughes-Mason has failed to comply with Tribunal orders, but rather whether Ms Hughes-Mason (or an occupier) has "intentionally or recklessly" caused or permitted any of the consequences in s 129(2)(a)-(d).
2. As discussed above, s 129(2) of the Act sets out the grounds on which the Tribunal may terminate a site agreement where an application for termination has been made by an operator under s 129(1). The Tribunal must be satisfied that Ms Hughes-Mason (or an occupant) has intentionally or recklessly caused or permitted one of the consequences set out in s 129(2)(a)-(d):

(a) serious damage to any property in the community, or

(b) injury to any person when lawfully present in the community, or

(c) the residential site to be used for any purpose that is illegal at common law or under an Act, or

(d) the operator (or the operator's agent or an employee or contractor of the operator or operator's agent) or any resident to be seriously or persistently threatened or abused.

1. Here, at the outset of its written reasons the Tribunal said: "the threshold issue for determination is whether the site agreement ought to be terminated for breach of the conduct performance orders" and "the issue is whether she has sufficiently complied with the conduct performance orders so that a site termination order would not be justified".
2. However, these are not questions which arise for consideration under s 129. The threshold issue under s 129 is whether Ms Hughes-Mason or an occupier has "intentionally or recklessly caused or permitted" any of the outcomes in s 129(2). The Tribunal did not ask itself this question. Rather it asked whether Ms Hughes-Mason had complied with the Tribunal's orders and, being satisfied that the orders had been breached, went on to determine whether Ms Hughes-Mason's breaches justified termination.
3. We acknowledge that evidence that a homeowner has contravened a Tribunal order may, depending on the terms of the order, be relevant to deciding whether a homeowner has intentionally or recklessly caused or permitted one or more of the consequences in s 129(2). Breach of Tribunal orders may also be relevant to deciding whether the Tribunal should exercise its discretion to terminate a site agreement. However, here the Tribunal approached the issue as determinative. That is, it treated the fact of non-compliance with Tribunal orders - particularly the order requiring registration of guests - as in itself a sufficient basis on which to terminate the site agreement under s 129(2). In effect, what it purported to do was to recast s 129(2) by reference to the Tribunal's orders.
4. By saying that the purpose of the conduct performance orders was to ensure Ms Hughes-Mason "took steps to show that she did not intentionally or recklessly cause or permit" any of the consequences in s 129(2)(a)-(d), and that Ms Hughes-Mason was required to show that she had "sufficiently complied" with the conduct performance orders so that termination "would not be justified", the Tribunal purported to change the way in which s 129(2) operates. There is nothing in the legislation which permits the Tribunal, by making specific performance orders, to do this.
5. We also agree with Ms Hughes-Mason's submission that by approaching its task by considering whether Ms Hughes-Mason had shown that she had "sufficiently complied" with the conduct performance orders so that termination "would not be justified" the Tribunal reversed the burden of proof and asked itself the wrong question. The question was not whether Ms Hughes-Mason could show that termination would "not be justified" but rather whether Ms Hughes-Mason had intentionally or recklessly caused or permitted one of the consequences in s 129(2)(a)-(d).
6. Had the Tribunal's performance orders mirrored the wording of s 129(2), the misapplication of s 129 might not have made a material difference to the outcome. However, this was not the case. The orders were substantially different, not only because they did not include a requirement of intentionality or recklessness and were worded differently to s129, but also because the orders included obligations which are not found anywhere in s 129.
7. We note that although the Tribunal did make a finding at [41] that Ms Hughes-Mason had been reckless, its reasoning fell short of what was required by s 129(2) because it did not address whether Ms Hughes-Mason's recklessness "caused or permitted" any of the specific consequences in s 129(2)(a)-(d).
8. We also note that the Tribunal found "that some illegal activity may have been occurring at site 39". Again, this fell short of what was required by s 129(2)(c) not only because of the equivocal nature of the finding, but more importantly, because the Tribunal did not consider whether Ms Hughes-Mason had intentionally or recklessly caused or permitted the site to be used for an illegal purpose.
9. With regard to the operator's submissions, we would make the following points.
10. Firstly, the operator says that breach of conduct performance order 3 (ie registration of guests) was evidence of a failure to act that facilitated further misconduct, falling within the meaning of "recklessly permitting" under s 129(2). The operator says that Ms Hughes-Mason incorrectly characterises the decision as relying on breaches of the conduct performance orders as a ground for termination whereas the Tribunal "correctly used the breaches as evidence of the appellant's reckless indifference and failure to control site conduct, which is directly relevant to the application of s 129(2)(b), (c) and (d)".
11. We do not agree. The decision makes clear that the Tribunal considered that breach of the conduct performance orders was a basis for termination. This is explicitly stated at [11] and [14], and clearly implied at [13], of the Tribunal's reasons. Even if the Tribunal was satisfied that Ms Hughes-Mason's failure to register guests somehow facilitated the misconduct of those guests (and it is not clear how such a finding could have been made on the evidence), the Tribunal was still required to be satisfied that Ms Hughes-Mason "intentionally or recklessly caused or permitted" one of the consequences in s 129(2). The Tribunal did not approach its task in this way. In effect, the Tribunal was satisfied that breaches of conduct performance order 3, coupled with the poor behaviour of her guests, were sufficient to establish serious misconduct for the purposes of s 129.
12. Secondly, the operator submits that Ms Hughes-Mason's failure to register guests was "central to identifying responsibility especially where the evidence showed recurring unregistered guests were the perpetrators". Again, this submission does not grapple with the key issue which is that the Tribunal did not approach the task by determining whether Ms Hughes-Mason had "intentionally or recklessly caused or permitted" any of the consequences in s 129(2).
13. Finally, the operator submits that "in all the circumstances the Tribunal's decision was a rational and proportionate response to a clear pattern of serious misconduct". Again, this submission does not address the underlying error we have identified in the way the Tribunal approached its task.
14. In conclusion, the Tribunal fell into error because it applied the wrong legal test under s 129. This ground of appeal is therefore upheld.

Was there was no evidence on which to make findings of fact?

1. In order to determine whether or not the application for termination should be remitted to the Tribunal for reconsideration, it is necessary to consider this ground of appeal. This is because Ms Hughes-Mason submits that even if the Tribunal had correctly applied s 129(2), there was no evidence before the Tribunal which could have supported a finding that Ms Hughes-Mason had recklessly or intentionally caused any of the consequences in s 129(2)(a)-(d). If that submission is correct, then the only appropriate orders for the Appeal Panel to make is to set aside the termination orders made by the Tribunal and dismiss the operator's application for termination of the site agreement.
2. In order to consider this ground of appeal, it is necessary to identify what evidence was before the Tribunal. Having considered the submissions of the parties, the transcript of the hearing and the materials before the Appeal Panel, we understand the only evidence before the Tribunal relevant to the termination application was:

(1) A series of eight breach notices which had been issued by the operator to Ms Hughes-Mason to remedy a breach of a community rule (the breach notices).

(2) Oral evidence of Mr Hughes and Ms Bates, who are the owners and operators of the operator; and

(3) Oral evidence of Ms Hughes-Mason.

1. The operator submitted that certain police documents, including a police statement, had also been made available to the Tribunal during the hearing. The operator did not provide copies of those documents to the Appeal Panel and conceded at the hearing that they did not form part of the "documents on record". In the transcript of the Tribunal hearing there is a reference to police documents having been provided to the Tribunal pursuant to a summons to produce. Those documents were not formally tendered into evidence and are not referred to in the Tribunal's reasons for decision. However, they are available on the Tribunal's electronic file, and, for completeness, we have had regard to them.
2. The essence of Ms Hughes-Mason's submission is that the evidence before the Tribunal, even taken at its highest, is not evidence which could support findings of serious misconduct for the purposes of s 129.
3. We turn now to consider that evidence.

1. The first breach notice is dated 30 April 2024 and relates to requirements about pets and about registration of visitors. It refers to an incident on 26 April 2024 involving Ms Hughes-Mason and an unregistered guest and says:

"Incident: unregistered guest leaving a dog in the car unattended whilst visiting site 39. Police were called to the seen [sic] to break into the car and rescue the dog. Resident of the park became distressed, watching this unfold."

1. We agree with the submission of Ms Hughes-Mason that this breach notice has no apparent relevance to s 129. Even if the breach notice establishes that an unregistered guest of Ms Hughes-Mason left a dog unattended in a vehicle, it contains no evidence that could support a finding that Ms Hughes-Mason intentionally or recklessly caused or permitted any of the consequences in s 129(2).

1. The second breach notice is also dated 30 April 2024 and relates to requirements about registration of visitors and parking.
2. It relevantly states:

"[Ms Hughes-Mason's ex-partner] has been parking overnight in the visitor carpark since February ... [his] car was then broken into on the 26/4/24. Police were called to this incident and [his] car was found to have a golf club and knife that belonged to [the ex-partner]. A knife is considered a weapon under the NSW law when in a public place, and this was noted in the police report. Police then asked management where [the ex-partner] was residing, and the police were informed that [he] had been residing at site 39. Police then called for back up and two police vehicles entered the park, blocked off site 39 and then arrested [the ex-partner] as there was an existing warrant out for his arrest.

Frightened by the commotion, residents hid in their dwellings as their peace, comfort and quiet enjoyment was disturbed.

Jessica is responsible for her visitors' behaviour and therefore responsible for bringing a weapon into a public area of the caravan park."

1. Attached to the breach notice is a photograph depicting a knife, a golf club, a wallet and various other miscellaneous items on what appears to be an asphalt surface.
2. This breach notice relates to conduct of a third party. Taken at its highest it is evidence that Ms Hughes-Mason's ex-partner was subject to an arrest warrant, was arrested whilst staying at site 39, and that a knife and golf club were found in his vehicle. The breach notice contains no direct evidence, or evidence from which one could reasonably draw an inference, of the occurrence of any of the consequences in s 129(2)(a)-(d).

1. The third breach notice is dated 14 July 2024 and relates to requirements about vehicle speed limits, registration of visitors and damage to property.
2. It relevantly states:

Persons involved: Jessica Hughes-Mason and unregistered guest

Incident: Unregistered guest that had visited Jessica at site 39, got into his vehicle in the visitor car park. He then drove off at speed and ended up off the road and onto the ... [park's] front grass and damaging it. This was witnessed by a resident who alerted management over the incident. Shortly after, the ground maintenance staff member alerted management of the incident in letting them know what happened as well."

1. Attached to the breach notice is a photograph depicting what appear to be tyre track markings on a grassy area next to a road.
2. Taken at its highest, the breach notice is evidence that a guest of Ms Hughes-Mason drove his vehicle in a manner which resulted in tyre track damage to a grassed area within the community. It is not evidence of "serious damage" to any community property. Moreover, the breach notice contains no direct evidence, or evidence from which one could reasonably draw an inference, that Ms Hughes-Mason invited the guest to the park, had prior knowledge that the guest would be visiting the park, or had the requisite foresight or knowledge to support a finding that she intentionally or recklessly caused or permitted the damage to the grassed area.

1. The fourth breach notice is dated 1 August 2024 and relates to registration of visitors, noise and behaviour of residents and their guests.
2. It relevantly states:

Persons involved: Jessica Highes-Mason and unregistered guest

Incident: [Ms Hughes-Mason's ex-partner] who frequently visits Jessica Hughes-Mason was seen parking in the visitor car park at 2:02 am in the morning. This was the night after being barred and block listed from [the park] and visiting Jessica Hughes-Mason. [The guest] and Jessica then started screaming/yelling at each other and using abusive and offensive language that woke up neighbouring residents. Residents then became scared as Jessica's visitors have been abusive and violent in the past. [The guest] only stayed for approximately a few minutes before walking back to the visitor car park, hopping in his car and leaving [the park].

This seriously disturbed the reasonable peace, comfort and quiet enjoyment of resident who live within the park."

1. Attached to the breach notice are photographs depicting a street, a fence and vehicles in what appears to be a carpark.
2. Taken at its highest, this breach notice is evidence that Ms Hughes-Mason was engaged in a verbal altercation with her ex-partner, which disturbed the peace and quiet enjoyment of others within the park. However, there is nothing in the breach notice which would support a finding that this incident involved any of the consequences in s 129(2)(a)-(d).

1. The fifth breach notice is dated 1 August 2024 and relates to registration of visitors and behaviour of residents and their guests.
2. It relevantly states:

Persons involved: Jessica Hughes-Mason and unregistered guest.

Incident: Jessica's unregistered guest ... was seen parking in the visitor car park. He hopped out of his car, walked around a vehicle parked beside him, punctured the tyre, went and visited site 39 and then hopped back in his car and left the visitor car park.

The vehicle that was damaged belonged to a resident's son who was visiting his father. This gentleman had never met [the guest] before and reported the incident to [the park] management. Police were notified of the incident. A while later, [the guest] was spotted at the end of [the park's] entry way near the bus stop. He was agitated and seemed under the influence of drugs. Management approached [the guest] to let him know he has been blocklisted from the park and is not welcome to return to the park due to not registering as a guest and committing a crime on [park] property. He started yelling and used offensive language and kept referring to Jessica Hughes-Mason who is a resident in the park. Management then ensured [the guest] was not welcome back at the park, before driving off to let [the guest] calm down.

Management's knowledge of the incident is that Jessica has another unregistered guest that has the same make and model as the vehicle that was damaged. [The guest] did not realise it had different number plates on it, and punctured the wrong vehicle because of a feud between Jessica, [the guest] and the unregistered guest who visits Jessica."

1. Attached to the breach notice is a series of photographs depicting vehicles parked alongside each other.
2. Taken at its highest, this breach notice is evidence that an individual known to Ms Hughes-Mason caused damage to a vehicle that he believed to belong to a person associated with Ms Hughes-Mason, but which in fact belonged to the son of another resident of the park. It is arguable that the damage caused to the vehicle could fall within the category of s 129(2)(a), that is, that it involved "serious damage to any property in the community". However, there is nothing in the breach notice which would support a finding that Ms Hughes-Mason invited this individual into the park or had advance knowledge that he would be visiting the park. More importantly, the breach notice contains no direct evidence, or evidence from which one could reasonably draw an inference, that Ms Hughes-Mason had the requisite foresight or knowledge to support a finding that she intentionally or recklessly caused or permitted the damage to the vehicle.

1. The sixth breach notice is dated 25 September 2024 and relates to registration of visitors.
2. It relevantly states that on 18 September 2024 a person visited Ms Hughes-Mason without Ms Hughes-Mason first registering that person with the park's management. The breach notice contains no information relevant to any of the consequences in s 129(2)(a)-(d).

1. The seventh breach notice is dated 17 January 2025 and relates to registration of visitors and behaviour of residents and their guests.
2. It relevantly states:

Persons involved: Jessica Highes-Mason and a few unregistered guests.

Incident: During the day of the 30th of December, Jessica had several unregistered guests visit her site.

They did not register at the office. When management would approach them to ask for ID and ask them to register, they would become verbally abusive or dismiss management. As Jessica's previous guests have been violent in the past, management did not feel safe enough to stand there and argue as to why it is important and a part of our park rules to register. Some of these unregistered guests would stay for only 5/10 minutes and then leave.

Later in the day a car with at least three people inside parked in the visitor car park and went to visit Jessica at site 39 without registering. When they left the site, they came out with a large duffle bag and hopped back in their car to leave the park, when an unmarked police car waiting in the car park pulled them up in the park inside the park grounds. As this happened at night, the police had flashing lights going which disturbed the peace and quiet enjoyment of the residents living in the park who were going to sleep.

All three people were removed from the car and the car was searched. A little while later, another two police cars arrived with lights flashing, and by this point, the residents were getting scared, concerned, frightened and exhausted as it was keeping them awake. They felt uneasy as they did not understand what was happening and were too scared to try and go to sleep with three police cars with flashing lights continually flashing.

Jessica's unregistered guest ... who visited her site earlier in the afternoon was then arrested and charged with the following:

Charge: Persons unlawfully in possession of property

All of this happened on [park] property and has upset the park community.

Jessica is not only breaking the community rules, but also Australian Law.

It is evident that serious misconduct has occurred in this incident as there has been illegal drug charges and firearm charges as well as verbally abusive behaviour towards management."

1. Attached to the breach notice is a photograph depicting a person walking on a path and labelled "unregistered unknown guest", a photograph depicting the front of a dwelling, and three photographs labelled "Police searching and arresting [guest] - disturbing residents". Blue and red lights can be seen in those three photographs, but the photographs are otherwise of poor quality and it is not clear what else is depicted in them.
2. Taken at its highest the breach notice is evidence that on 30 December 2024, persons associated with Ms Hughes-Mason were verbally abusive to management, that a number of persons were seen coming and going from site 39 during the course of the day, and that whilst in the carpark on that day, one of those persons was charged by police with offences relating to unlawful possession of drugs, ammunition and other property, and unlawful acquisition of a firearm.
3. Of the various limbs of s 129(2) this evidence is arguably relevant to s 129(2)(a) (serious or persistent threats or abuse) and s 129(2)(c) (using the site for any illegal purpose).
4. With regard to 2(a), the breach notice merely says the guests were "verbally abusive" and would "dismiss management". It contains no details of any such interactions and could not support a finding that the operator or any resident was "seriously or persistently threatened or abused" by those persons.
5. With regard to 2(d), without more evidence, the fact that persons were seen coming and going from site 39, and that one of those persons was subsequently arrested (whilst in the carpark) for offences relating to possession and acquisition of illegal goods, does not form a basis for a finding that site 39 was being used for an illegal purpose. There is nothing in the breach notice which would support a finding that any illegal activity was conducted at the site. The Tribunal's conclusion that some illegal activity may have been occurring at site 39 was nothing more than mere conjecture: Australian Information Commissioner v Facebook [2020] FCA 1307 at [38]; Seltsam Pty Ltd v McGuinness (2000) 49 NSWLR 262 at [87], [91] per Spigelman CJ.
6. Moreover, there is nothing in the breach notice about Ms Hughes-Mason's state of mind regarding the use of the site and nothing was put to Ms Hughes-Mason about this matter at the hearing. Thus, even if the evidence could support a finding that the site was being used for an illegal purpose, it could not support a finding that Ms Hughes-Mason intentionally or recklessly caused or permitted such use.

1. The eighth breach notice is dated 20 February 2025 and relates to pets, registration of visitors and behaviour of residents and their guests.
2. It relevantly states:

Persons involved: Unregistered guest visiting Jessica Highes-Mason at site 39 and their dog and [a park resident].

Jessica's unregistered guest who was seen visiting her at site 39 was seen leaving her dog to roam the front of the park. A resident was scared and hid in the amenities block. After some time, another resident came out of the amenities block and seen the dog locked in the pool yard. At this point, residents started to appear from their cabins and caravans as they could hear a dog barking.

When Jessica's unregistered guest came back to the area, seen walking from site 39, [a resident] stopped the unregistered guest and told her that dogs were not allowed at the park.

The unregistered guest then became verbally abusive towards [the resident] and used offensive language... the argument and verbally abusive language towards [the resident] became physical. As the argument escalated and the abuse turned violent, both [the resident] and the unregistered guest started a physical altercation when the dog bit [the resident] on the leg. The unregistered guest then left with her dog, still shouting offensive language whilst walking back to her car, before getting in and driving off.

[The resident] was seen at Lismore Base Hospital where she received stitches to the leg."

1. Taken at its highest, the breach notice supports a finding that there was a physical and verbal altercation between an unregistered guest of Ms Hughes-Mason and a resident of the park, and that during the affray, a dog belonging to the unregistered guest, which was off-leash, bit the resident. There is nothing in the breach notice which would support a finding that Ms Hughes-Mason was present when this interaction occurred, that she knew or ought to have known that her guest had the dog off-leash, or that Ms Hughes-Mason intentionally or recklessly caused or permitted the injury to the resident.

1. The Tribunal file reflects that on 24 January 2025, the Tribunal received from NSW Police the following documents under summons:

(1) A partial copy of a redacted facts sheet; and

(2) A copy of a redacted COPS Event record.

1. The facts sheet relates to a motor vehicle accident which occurred at the park on 31 January 2023. It refers to an accused person (a third party) having made admissions of driving a vehicle which collided with a victim at the park and having continued driving after the collision. The facts sheet refers to offences of "drive recklessly/furiously or speed/manner dangerous" and "fail to stop after impact causing injury". The covering letter from NSW Police states that the accused was convicted on 10 October 2024 and sentenced to a driver's licence disqualification of two years.
2. Evidence about that incident was considered by the Tribunal in the original proceedings when it declined to make a termination order under s 129. The Tribunal found that "minor injuries" had been caused to the resident by an unregistered guest, not by Ms Hughes-Mason. The facts sheet is not relevant to the issues which were before the Tribunal in the renewal proceedings.
3. The redacted COPS Event record relates to the events described in breach notice 2. It refers to Ms Hughes-Mason's ex partner and relevantly states:

"About 6.45 PM on the 27 April 2024 Police were called to [the park] as a car, belonging to the accused was suspected of being broken into. Police attend and checks showed the accused had an outstanding warrant.

They walked up to his cabin, number 39 and knocked on the front door. The accused tried to leave by the rear door, but other Police were blocking his exit and when they shone a torch on him he went back into the cabin. After about 5 minutes he emerged and Police ... placed him under arrest."

1. The COPS Event record does not enhance the information contained in breach notice 2 in any substantive way. Nothing in the record would support a finding that Ms Hughes-Mason intentionally or recklessly caused or permitted any of the consequences in s 129(2)(a)-(d).

1. We have reviewed the transcript of the hearing. There is nothing in the oral evidence provided by Mr Hughes, Ms Bates or Ms Hughes-Mason which would support a finding that Ms Hughes-Mason intentionally or recklessly caused or permitted any of the consequences in s 129(2)(a)-(d).

1. There was evidence before the Tribunal, in the form of the breach notices, that Ms Hughes-Mason had failed to register visitors, that certain visitors of Ms Hughes-Mason had behaved poorly, and that Ms Hughes-Mason herself had been involved in a verbal altercation with a visitor. However, none of that evidence rises to the level required for the purposes of s 129. In order to terminate the site agreement under s 129, the Tribunal was required to be satisfied that Ms Hughes-Mason had intentionally or recklessly caused or permitted any of the consequences in s 129(2)(a)-(d). For the reasons explained, there was no evidence before the Tribunal which could have supported such a finding.
2. We note that at the hearing of the appeal there was some suggestion by the operator's representative that even if the evidence was insufficient to establish that Ms Hughes-Mason herself had intentionally or recklessly caused or permitted any of the consequences in s 129(2)(a)-(d), there was evidence that a person occupying or jointly occupying the residential site had done so.
3. We reject this argument, firstly because no such submission was put to the Tribunal. Secondly, there was some evidence before the Tribunal that Ms Hughes-Mason's ex-partner was jointly occupying site 39 at the time he was arrested. However, as discussed above, there was no evidence that that individual had caused or permitted any of the consequences in s 129(2)(a)-(d). There was no evidence before the Tribunal that any other person had been occupying, or jointly occupying, the site.

1. For these reasons we are upholding the appeal, setting aside the termination orders, and making an order that the application for termination be dismissed.
2. It is not necessary to consider the other grounds of appeal.
3. We are remitting the matter to the Tribunal for consideration only of the application for the operator to be permitted to carry out works at the site and to recover from Ms Hughes-Mason the reasonable cost of those works. Given that the Tribunal made serious adverse findings about Ms Hughes-Mason's character, the matter should be remitted to a differently constituted Tribunal.

(1) Time for filing the appeal is extended to 13 May 2025.

(2) The appeal is allowed.

(3) The orders made by the Tribunal on 23 April 2025 are set aside and in lieu thereof an order is made that the application for termination of the site agreement is dismissed.

(4) The matter is remitted to the Tribunal, differently constituted, for reconsideration only of the application for the operator to be permitted to carry out works at the site and to recover from Ms Hughes-Mason the reasonable cost of those works.

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.