Kary v B'nai B'rith Retirement Villages Limited

NCAT Appeal Panel|2022-12-14

Introduction

This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 NSW (NCAT Act) against a decision of the Consumer and Commercial Division of the Tribunal which involved a dispute under the Retirement Villages Act 1999 (NSW) (RV Act) between the appellant, Mr Kary, a resident (of Unit xx) of the Princess Gardens Retirement Village at Rose Bay NSW (Village), and the respondent, B'nai B'rith Retirement Villages Limited, the operator of the Village.
In the Tribunal proceedings, Mr Kary sought an order under s 54(2)(b) of the RV Act modifying the operation of Rule 5 of the Village's Rules in its application to him to enable him to keep a maximum of two (2) budgerigars on certain conditions, including that he must keep the birds in their cage. That is the form of relief that the Tribunal Member addressed in the decision under appeal dated 3 August 2022 (Decision).
In the Decision, the Tribunal Member found in favour of the respondent. The Member declined to modify the operation of Rule 5 of the Village's Rules as it applied to Mr Kary, and he dismissed Mr Kary's application for orders of the Tribunal under the RV Act. The Tribunal also ordered that each party is to pay their own costs of the first instance proceedings.
In this appeal, Mr Kary appeals against the dismissal of his application for orders under the RV Act. In the Notice of Appeal, Mr Kary sought an order that Rule 5 of the Village's Rules be modified in its application to him by permitting him to keep a maximum of 2 budgerigars on certain conditions, including that he "not allow the budgerigar(s) to leave [his] premises". His position as to the relief sought is further clarified in submissions in reply of the appellant dated 2 December 2022 and referred to later in these Reasons.
For convenience, in this appeal decision we will refer to the appellant, Mr Kary, as the resident and the respondent as the operator.
For the reasons set out below, we have decided to allow the appeal and to remit the proceedings to the Consumer and Commercial Division for reconsideration by a differently constituted Tribunal.

Procedural History of the Appeal

The Notice of Appeal was lodged on 30 August 2022, which is 13 days outside of the 14-day period specified in Rule 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (Tribunal Rules) for residential proceedings allocated to the Consumer and Commercial Division of the Tribunal.
Residential proceedings in the Consumer and Commercial Division of the Tribunal are defined in Rule 3 of the Tribunal Rules and include proceedings arising under the RV Act. Therefore, the appeal was required to be lodged by 17 August 2022.
In his Notice of Appeal lodged on 30 August 2022, the resident stated, mistakenly, that he did not require an extension of time pursuant to s 41 of the NCAT Act for the lodging of the appeal.
On 12 September 2022, the operator drew attention to the resident's error by lodging an Initial Reply to Appeal (Pending Determination of Extension of Time Issue).
We will deal with the extension of time issue later in this appeal decision.
The appeal proceedings were listed for a first directions hearing before the Appeal Panel on 15 September 2022, when there was no appearance by or on behalf of the resident. The appeal was duly dismissed pursuant to s 55(1)(c) of the NCAT Act.
The resident then applied under s 55(2) of the NCAT Act to reinstate the appeal. On 21 October 2022, the application to reinstate the appeal was granted by the Appeal Panel.
Also on 21 October 2022, the Appeal Panel made directions for the appeal to progress to a final hearing. Leave was granted to both parties to be legally represented. The resident's evidence including written submissions, was to be filed and served by 11 November 2022 and the operator's evidence including written submissions, was to be filed and served by 25 November 2022. The Appeal Panel further directed that the issue of whether it should extend the time for filing the Notice of Appeal is to be determined at the final hearing of the appeal.
The Appeal Panel has received the parties' evidence including written submissions, pursuant to the directions of the Appeal Panel made on 21 October 2022.
The appellant's documents received on 11 November 2022 (Appellant's Appeal Bundle) included at pages 77 to 80 of the Appellant's Appeal Bundle, his submissions to support an application to extend time for the filing of the appeal together with a copy of an email sent on 4 August 2022 to the operator's solicitor (4 August 2022 email).
As well as the documents received by the Appeal Panel on 25 November 2022 (Respondent's Appeal Bundle), the operator also lodged a Reply to Appeal, which attached a written submission (also dated 25 November 2022) replying to the resident's application to extend time for the filing of the appeal.
On 2 December 2022, the Appeal Panel received written submissions in reply (comprising 8 pages) from the resident, which responded to the operator's submissions as regards the late lodgement of the appeal, and to the operator's Reply to Appeal dated 25 November 2022. At page 6 of his submissions in reply, the resident confirmed that he was "content to offer to comply with a further restriction that he keep the caged birds inside his residence at all times".

Background

The background to the appeal, which is based on information contained in documents filed in the appeal proceedings and told to us during oral submissions at the appeal hearing, is as follows.
On or about 5 September 2018, in respect of his residency of Unit xx of the Village (premises), the resident made a retirement village contract (Contract) with the operator: see the Respondent's Appeal Bundle at pages 24 to 63. The resident signed the Contract at page 61 of the Respondent's Appeal Bundle and initialled each page of the Contract.
At page 30 of the Respondent's Appeal Bundle, the Contract stated: Nature of residence right You do not own the premises. We grant you the right to occupy the premises on the following basis. The provisions in this contract which apply to the residence right type ticked below will apply to you and us [The box for 'non-registered interest holder' is then ticked and the box for 'Owner of a lot in a strata scheme' is crossed out together with other boxes under the heading 'registered interest holder']
At the time of the Contract, the resident received a copy of a document entitled 'Princess Gardens Village Rules B'nai B'rith Retirement Village' approved on 14 October 2012: see pages 64 to 69 of the Respondent's Appeal Bundle (Village Rules). The resident initialled each page of the Village Rules to indicate that he read and agreed to them.
Rule 5 of the Village Rules provides as follows: No dogs or cats allowed. You may keep fish in your premises at any time, without the need to let us know or get our consent. For safety of other residents, no other animals (including birds, cats, or dogs) are to be kept in your premises or brought onto common areas at any time.
Clause 10 of the Contract stated: 10.1 How do the village rules apply? If there are village rules: 1. You [the resident] must comply with the village rues and use your best endeavours to ensure compliance with the village rules by any person who is lawfully in your premises or who you invite to the village; and 2. We [the operator] must comply with the village rules and use our best endeavours to ensure compliance with the village rules by our residents, our tenants, employees, and any other person that we invite to the village. 10.2 What if a village rule is inconsistent with this contract? If a village rule is consistent with the retirement village laws but inconsistent with a term of this contract, the village rule prevails to the extent of the inconsistency.
"Retirement village laws" is defined in clause 2.1 of the Contract to mean the RV Act and the Retirement Villages Regulation 2017 (NSW), as amended or substituted from time to time.
Clause 26 of the Contract provided: PROHIBITION ON PETS AND OTHER ANIMALS 26.1 Acknowledgments by you You acknowledge and agree that: 1. apart from the animals mentioned in part 2 of this clause: 1. you must not keep or allow any pets or other animals in your premises; and 2. you must not allow a pet or other animal to be brought into the Village by a visitor, guest, or invitee of yours; and 1. for the purposes of this clause, pets or other animals include but are not limited to birds, cats, dogs, and any other companion animal. 26.2 Exceptions to Prohibitions on Pets We agree that the prohibition on pets or other animals contained in this clause does not extend to: 1. Fish which you keep in your premises, or 2. A seeing-eye dog if one is required by you.
In the first instance proceedings, the resident sought an order of the Tribunal under s 54(2)(b) of the RV Act modifying the operation of Rule 5 in its application to him. In those proceedings, the resident did not dispute the validity of Rule 5 for the purposes of s 54(1)(a) of the RV Act. Nor did the resident seek an order setting aside or invalidating Rule 5 under s 54(2)(a) of the RV Act.

Scope and nature of internal appeals

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).
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, 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 of the Tribunal are limited to those set out in cl. 12(1) of Sch. 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 1. The decision of the Tribunal under appeal was not fair and equitable; or 2. The decision of the Tribunal under appeal was against the weight of evidence; or 3. Significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
However, as indicated, if an error on a question of law is established, an appellant may appeal as of right, and accordingly, does not need to prove that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered.

Grounds of Appeal

The notice of appeal, and the written submissions and the submissions in reply of the resident lodged with the Appeal Panel on 11 November 2022 and 2 December 2022, respectively, identify seven (7) Grounds of Appeal. The Grounds refer to the Member having "erred in law" in each instance. In his Notice of Appeal, the resident does not seek leave to appeal.
The resident's 7 Grounds of Appeal as stated in the Notice of Appeal are: 1. The Member (Decision [72] - [73]) misconstrued s 54(1)(b) of the RV Act by considering whether the belief of the resident in relation to Village Rule 5 was held by the resident on a reasonable basis, in circumstances where, in the resident's submission, the only question set by subsection 54(1)(b) in order to enliven the Tribunal's jurisdiction is whether, or not, a resident "considers a village rule to be unjust, unconscionable, harsh or oppressive" (Ground 1), 2. The Member erred (Decision [74] - [78]) by: (a) seeking to distinguish Cooper v The Owners - Strata Plan 4633 [2020] NSWCA 250 (Cooper), (b) taking into account irrelevant considerations, namely, the resident's non-ownership of a freehold right to his residence and the reasonableness of the Village Rules in 2018 when he obtained that residency (referred to as the "2018 situation"), and (c) failing to follow the binding decision of the Court of Appeal in Cooper (Ground 2), 3. The Member erred (Decision at [75]) to take account, pursuant to accepting the analogy of the landlord and tenant relationship as being a true comparison to the resident's relationship with the operator, the legislated general allowance of pets by a tenant, as well as current community standards as stated in the NSW Media Release dated 23 August 2021 and at pages 29 to 31 of the Appellant's Appeal Bundle (Ground 3), 4. The Member erred (Decision at [76]) by taking into account irrelevant considerations - see Cooper at [50], [52], and [83] (Ground 4), 5. The Member erred (Decision at [77]) by failing to give adequate reasons and applying wrong principles, in that the Member adopted, without any specification, the respondent's submissions (Ground 5), 6. The Member erred by failing to take into account a relevant consideration, that 2 caged budgerigars posed no threat to the safety of other residents (Ground 6), 7. The Member erred by making a decision that was so unreasonable that no reasonable decision-maker would make it as it is inconceivable that 2 caged budgerigars could affect in any way the safety of other residents of the Village (Ground 7).
Insofar as the 7 grounds of appeal raise questions of law, leave to appeal is not required.

Generally

We have decided that the appeal should be allowed because the Tribunal Member did not properly construe s 54 of the RV Act, as it applied to the facts before him, and thereby fell into error on a question of law. Leave to appeal is, therefore, not required.
Other than some observations which we will make separately about Cooper's case, it is not necessary for us to make findings on each of the resident's 7 Ground of Appeal.
Nonetheless, we think that while the Appeal Grounds were framed by the resident in his Notice of Appeal as errors on questions of law, there are some Grounds (e.g., Grounds 3, 6 and 7) which to some extent, do not raise questions of law. Some of the Appeal Grounds refer to errors in the Member's fact-finding to reach the Decision of 3 August 2022, as well as referring to documents not in evidence at the hearing before the Tribunal Member, such as the NSW Media Release dated 28 August 2021: see pages 29 - 30 of the Appellant's Appeal Bundle. Furthermore, the resident's submissions for the appeal refer to documents not before the Tribunal Member at the hearing, such as the Village Rules of another retirement village in NSW: see pages 3 to 9 of the Appellant's Appeal Bundle. The resident submitted at the appeal hearing that such documents are material to the question of whether, or not, Village Rule 5 is, in fact, unjust, and/or is harsh or oppressive as it applies to him, including why he submits that the so-called 2018 situation no longer applies to him. The documents were objected to by the operator's legal representative for the reasons put in his written submissions for the appeal; but because we have allowed the appeal on other grounds, we did not need to consider such documents for this appeal, assuming they are relevant. The documents are pertinent however, because for the reasons given later, we have decided to remit the appeal and to grant leave to both parties to adduce further evidence. The further evidence may include the documents relied on by the resident for this appeal (albeit, on the basis that it will be incumbent on the resident to establish the relevance of the documents), and the operator's submissions and evidence in reply to such documents and any other evidence to be relied upon by the resident.

Proper Interpretation of s 54

Section 54 of the RV Act provides: (1) The operator of a retirement village or a resident of the village may, at any time, apply to the Tribunal for an order in relation to either or both of the following-- (a) a dispute concerning the legal validity of a village rule in force in the village, (b) a village rule in force in the village that the operator or resident considers to be unjust, unconscionable, harsh or oppressive. (2) The Tribunal may determine an application made under subsection (1) by making an order-- (a) setting aside the village rule concerned, or (b) modifying the operation of the rule in its application to a resident or to some or all of the residents of the village, or (c) upholding the rule.
The basis of Ground 1 of the appeal is that in the resident's submission, the Tribunal does not have to be satisfied that a belief held by a resident of a retirement village was reasonably held; rather, the only question set by s 54(1)(b) to enliven the Tribunal's jurisdiction is simply whether, or not, a resident "considers a village rule to be unjust, unconscionable, harsh or oppressive". The resident further submitted that the issue of reasonableness of that belief might well be a factor to consider under s 54(2) in making an order, but it is not a jurisdictional matter such that the Member identified the wrong issue and, as well, asked the wrong question, which meant the Tribunal fell into error by wrongfully limiting its jurisdiction.
In the Decision, the Member found: [72] As has been considered by the applicant, the operation of s 54(1)(b) does not permit an order under sub section (2) to be considered unless the Tribunal is satisfied that a belief held by a resident under s 54(1)(b) is reasonably held. Even if that criterion has been established the Tribunal must then consider whether a discretion should be exercised under s 54(2). [73] It is firstly necessary for the Tribunal to be satisfied that a belief held by the applicant in relation to Village Rule 5 being harsh or oppressive but not necessarily unconscionable is held by him on a reasonable basis. It is appropriate for the Tribunal to consider the observations of the Court of Appeal in Cooper v The Owners Strata Plan 58068 (supra) when considering that position and the observations of Justice Basten and Justice Fagan in particular are relevant for the interpretation of those words. [74] In considering whether the belief held by the applicant is reasonably held, it is necessary to consider the relationship in contract between the applicant and the respondent and the basis upon which the applicant is entitled to believe that the terms of the contract he signed in 2018 have now become harsh or oppressive. In considering those matters, particularly in the light of the decision of the Court of Appeal in Cooper v the Owners Strata Plan 58068 (supra) it is appropriate to draw a distinction between a freehold right to own and occupy land under the Real property Act 1900, and the Strata Schemes Management Act 2015 as compared to the contractual right of a non-registered interest holder which describes the applicant's position in relation to the respondent. It would be necessary to assume that the contract under which the applicant willingly occupied the Village, and the Rules which were then in place could be described as harsh or oppressive in circumstances where it could not be said that the contract or the Rules inhibit unreasonably his right to enjoy the occupation of the Village which he expected in 2018. [75] The imposition of Rules and the terms of the Contract are similar to the position of a landlord and tenant in a leasehold situation where a tenant agrees to enter into occupation of premises upon the Rules and contractual terms contained in the agreement entitling him or her to occupy the premises. [76] Section 66 of the Retirement Villages Act 1999 specifically requires the operator of a retirement village to respect the rights of residents of the village in a manner similar to the obligations imposed upon a landlord and his tenants. Section 66(20(b) of the Act also requires the operator of the retirement village to take all reasonable steps to ensure that residents meet their obligations under the Village Contract, the Village Rules and the Act so that a resident does not unreasonably interfere with the peace comfort and quiet enjoyment of his or her fellow residents. The Tribunal is satisfied that the obligations imposed on an operator under s 66 in the expectations that other residents have entered into occupation under a contract of similar terms would preclude, on a reasonable basis, the terms of Village Rule 5 being found to be harsh or oppressive. [77] Even if a view was taken which would enable the Tribunal to progress s 54(2)(b), it would not be appropriate to exercise the discretion as sought by the applicant for the reasons which have been outlined in the respondent's submissions and referred to above.
Subsections 54(2)(a) and (c) define the Tribunal's powers to deal with an application under subsection 54(1)(a); whereas subsections 54(2)(b) and (c) define the Tribunal's powers to deal with an application made by a person who has the standing to do so under subsection 54(1)(b). There is no doubt that the resident in this case had, and has, standing to make the application for orders of the Tribunal under the RV Act; but in our view, the purpose of s 54 is remedial. The purpose is to provide retirement village operators and residents with relief in respect of invalid or unjust, unconscionable, harsh, or oppressive village rules. That purpose can be served only, in the case of a rule that is the subject of an application under s 54(1)(b), if the rule is, in fact, unjust, unconscionable, harsh, or oppressive, either per se, or in its application to the resident or to some or all the residents of a retirement village, depending on the nature of the application. Otherwise, there is no work for s 54(2) to do as there is nothing for an order under s 54(2) to remedy.
Moreover, before the Tribunal considers the exercise of its discretion under s 54(2), an order under subsection 54(2)(b) must be capable of remedying the asserted unjustness, unconscionability, harshness, or oppressiveness of the rule that is the subject of the application under subsection 54(1)(b).
While the resident did not press a case that Village Rule 5 was unconscionable, the resident did assert that the Rule was unjust, and/or that it was oppressive or harsh, as it applied to him. There were questions of fact in the application of s 54 of the RV Act to the case before the Tribunal, which were simply not answered by the Tribunal Member, or dealt with adequately, or at all, in his Reasons. These were errors on questions of law. The Tribunal Member did not consider whether Village Rule 5 was, in fact, unjust. The Tribunal Member may have considered whether, or not, a belief was reasonably held by the resident that the Rule as it applied to him, was harsh or oppressive, but this was the wrong question. In our view, the Tribunal Member should have considered, and then made findings as to, whether on the material before him for the hearing, the Rule was, in fact, harsh or oppressive, as it applied to the resident.
The finding of the Member at [76] of the Decision does not address whether the Rule was unjust, oppressive, or harsh. While we accept that s. 66 of the RV Act, together with the expectations of other residents who occupy residences at the Village under a contract of similar terms to the Contract, are matters for consideration as to whether, or not, orders under s 54(2) are made, including in the exercise of the Tribunal's discretion, they are not determinative matters. On a proper interpretation of s 54 of the RV Act, they are not matters which, in and of themselves, preclude findings of unjustness, harshness, or oppressiveness. To that extent, the findings of the Member particularly at [76] of the Decision were incorrect and it is a further basis for order 1 made on 3 August 2022 to be set aside.

Cooper's case

Some of the Appeal Grounds dealt with the Court of Appeal decision in Cooper as it applied to the circumstances of this case. While we have determined for the reasons given to allow the appeal on other grounds, we make the following observations. In our view, the Member (Decision at [59] - [63], and [78]) properly distinguished Cooper's case.
In Cooper, the property interests were those of lot owners, being registered interests in real property under the Real Property Act 1900 NSW. The interests of lot owners in a strata scheme are fundamentally different to the interest of the resident/appellant, who holds an unregistered, contractual right of occupancy to the premises: see the Contract (page 30, Respondent's Appeal Bundle) under the heading 'Nature of Residence Right'; see also s 24 of the RV Act, the definitions of "residence contract" and "residence right" in s 4, and the definition of "registered interest holder" in s 7. The resident does not own any part of the premises. He does not have indefeasibility of title to anything in respect of the premises. He is not the registered proprietor of anything in respect of the premises. Rather, it is the operator/respondent who is the owner of the premises comprising Unit xx in the Village.
Cooper's case was also properly distinguished, in our opinion, on the basis that the resident's application to the Tribunal for orders under the RV Act, which was to modify the operation of Rule 5 as it applied to him, was materially different to the lot owner's application in Cooper, which concerned the validity of a by-law of the strata scheme.
Moreover, the Court of Appeal's decision in Cooper applied to a different statutory framework, the Strata Schemes Management Act 2015 (NSW), where the relevant sections of that Act (s 139(1) and 150(1)) do not contain the language of "unjust", and do not contain a provision equivalent to subsection 54(2)(b) of the RV Act, which permits the Tribunal to modify the operation of a by-law in its application to one or more lot owners.
Nevertheless, we accept that the Court of Appeal's decision provides some general guidance and assistance (see for example, Cooper per Basten JA at [28] - [29]) as to the meaning of the expression "harsh, unconscionable or oppressive", when the Tribunal in a particular case for orders under s 54 of the RV Act is required to consider whether a village rule is, in fact, "harsh, unconscionable or oppressive".

Extension of time for the appeal

As mentioned earlier, the appeal was lodged out of time and therefore the resident requires an extension of time in which to lodge the appeal.
The Appeal Panel has power to extend time under s 41 of the NCAT Act.
The principles on which an extension of time to bring an appeal would be granted were set out by the Appeal Panel in Jackson v NSW Land & Housing Corporation [2014] NSWCATAP 22 (Jackson) at [21]-[22], drawing on early orthodox principle and authority: "Time limits, including the specification of the time within which an appeal from an internally appealable decision to the Appeal Panel of the Tribunal must be lodged, are established by legislation for the purpose of promoting the orderly and efficient conduct of proceedings in the Tribunal, providing certainty for the parties to proceedings, especially the party in whose favour orders have been made, and achieving finality in litigation. For these reasons, these time limits should generally be strictly enforced. That is not to say, however, that exceptions should not be made where the interests of justice so require. The express power in s 41 of the Act to grant extensions of time allows the Tribunal to prevent the rigid enforcement of time limits becoming an instrument of injustice."
The criteria for assessing an extension application can be summarised from Jackson as follows: 1. the appellant must demonstrate that strict enforcement of the time limit will work an injustice on the appellant, 2. the respondent, having obtained a favourable primary decision, can be thought of as having a "vested right" to retain the benefit of that decision after the normal time for appeal has expired, 3. Consistent with the foregoing, the factors to be considered are the length of the delay, the reason for the delay, the prospects of success ("that is usually where the applicant has a fairly arguable case"), and the extent of any prejudice suffered by the respondent to the appeal, 4. It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being "fairly arguable".
In this case, applying the factors identified in Jackson: 1. The appeal was lodged 17 days out of time. While this is a not insignificant delay in circumstances where the time limit for lodgement of the appeal was 14 days, it is relevant that by the 4 August 2022 email, the resident had informed the operator's solicitor of his intention to appeal the Decision which had been published the day before. 2. The resident thought he had 28 days within which to lodge the appeal. He conceded in his oral submissions at the appeal hearing that he had misread the information on the Tribunal's website as to when an appeal in residential proceedings arising under the RV Act must be lodged. We accept his explanation that as soon as he became aware of the error, he took steps to lodge the appeal consistent with the intention expressed in the 4 August 2022 email. 3. For the reasons given, the substantial merits of the appeal favour the appellant's position for the setting aside of order 1 made on 3 August 2022. 4. The operator's solicitor had no obligation to inform the resident that the resident's "understanding" as expressed in the 4 August 2022 email, which was that the resident had 28 days within which to lodge an appeal from the Decision, was incorrect; nevertheless, as the operator's legal representative properly conceded at the appeal hearing, the operator suffers no real prejudice if time is extended to 30 August 2022, being 26 days after the operator's solicitor received the 4 August 2022 email. 5. All the above matters, operate in circumstances where strict enforcement of the time limit under the Tribunal Rules would work an injustice on the resident.
For these reasons, we extend time for the lodgement of the appeal to 30 August 2022.

Conclusion and Orders

For the reasons given, the appeal is allowed. We are not satisfied that in accordance with s 81(1)(d) of the NCAT Act, we can fairly determine the parties' dispute as regards Village Rule 5 based on the present appeal materials.
In our determination, in accordance with s 81(1)(e) of the NCAT Act, the proceedings should be remitted back to the Consumer and Commercial Division for a differently constituted Tribunal to reconsider the resident's application for orders under s 54 of the RV Act in accordance with these Reasons and otherwise according to law.
We observed earlier that the resident relied upon documents not before the Tribunal at first instance. Some of the reasons why the operator objected to the documents being considered for the appeal were: (a) that the documents were reasonably available at the time of the first hearing, (b) that the documents were not significant new evidence, and (c) that in any case, the operator had not been afforded an opportunity to respond to the documents via submissions and/or by adducing evidence in reply at the hearing at first instance. We consider that at the remitted hearing pursuant to the orders made on this appeal, both parties should have the opportunity to adduce further evidence bearing upon the issues of whether Village Rule 5 is unjust, and whether the Rule is harsh or oppressive as it applies to the resident.
Neither party sought an order for their costs of the appeal. We consider the appropriate course is that there be no order as to costs, with the intent that each party is to bear their own costs of the appeal. This is also consistent with the course taken in the first instance proceedings.
For this appeal, we make the following orders: (1) Application for extension of time to lodge the appeal to 30 August 2022, is granted, (2) Appeal allowed, (3) Order 1 made on 3 August 2022 in the proceedings constituted by file no RV 22/06325 is set aside, and the proceedings are remitted to the Consumer and Commercial Division for reconsideration in accordance with these Reasons and otherwise according to law, by a differently constituted Tribunal, with leave to both parties to adduce further evidence, (4) No order as to the costs of this appeal (with the intent that each party is to bear their own costs of the appeal). 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: 09 January 2023

Retirement Villages Regulation 2017(NSW)

At a glance

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Decision date

Source

Judgment (10 paragraphs)

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Legislation Cited (6)

Cases Cited (3)

Cited By (1)