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

NCAT Consumer and Commercial|2023-12-05

Outline

The operator of a residential community in the Hunter Valley (the applicant) commenced proceedings against two residents (the respondents) on 21 January 2022, seeking a termination order.
After considering the evidence and submissions of both parties, the Tribunal decided that the applicant was entitled to a termination order, with possession deferred for 90 days, and that each party should pay their own costs.

History of the proceedings

An appeal from a decision published on 16 December 2022 was heard on 14 March 2023 and allowed on 7 June 2023. The application was remitted for re-hearing by a differently constituted Tribunal. After a directions hearing on 31 July 2023, a notice was issued on 16 October 2023 to advise the parties of the allocated hearing dates in Newcastle.

Documents not admitted as evidence, but marked for identification, were: MFI 1 Respondents' submissions regarding the summons MFI 2 Applicant's submissions regarding the summons MFI 3 Respondents' outline submissions MFI 4 Village map MFI 5 USB drive, containing a video referred to by Ms Bowring-Miller MFI 6-9 Documents which became Exhibits C-F respectively MFI 10 Applicant's outline submissions MFI 11 17 November 2022 letter, applicant's solicitors to respondent

Jurisdiction

It is not in dispute that the Tribunal has jurisdiction to hear and determine these proceedings, which are governed by the provisions of the Residential (Land Lease) Communities Act 2013 (NSW) (the Act).

Applicant's evidence

Mr Grugeon made three statements in relation to these proceedings, dated 27 April 2022, 19 August 2022, and 8 November 2022.
In his first statement (A90), this witness said the respondents were permitted to commence occupation without first signing a site agreement and went on to refer to the failure to make payments for site fees and charges for water and sewerage. After referring to an Amended Development Consent for the village, it was said that the NBN connection for the respondents' site was in place in June 2021 and that air conditioner costs were a matter between the residents and their builder. A copy of a 3 February 2022 reminder notice, referring to conduct that would be trespassing, was annexed to this statement (A148).
The second statement of Mr Grugeon (A173) also referred to the failure of the respondents to pay the required amounts for both site fees and charges for utilities, and annexed copies of tax invoices for site, a "Receivable Invoice Summary", and invoices for water usage and sewerage service.
Mr Grugeon's third statement (A195) also dealt with site fees. It referred to a $20 per fortnight site fee increase from 1 July 2022 and annexed a statement for the respondents' account which referred to 12 invoices, copies of which were also provided.
When cross-examined, Mr Grugeon accepted that there are trees behind the respondent's lot, being lot 165. He said that adjoining land as being a lightly wooded reserve. It was suggested that the respondents make regular payments each week to which the response was that their payments are erratic and never up to date. Mr Grugeon accepted that the applicants had never signed a site agreement, being the agreement said to have been breached.
After being asked to read a portion of Ms Matla's statement ([36]-[53]), Mr Grugeon was questioned about a meeting held in June of 2022. He said he attended that meeting but did not convene it. His evidence was that this was meeting called due to statements having been given to the village's manager and the Police. He also noted that the applicant owed a duty of care to village residents. Mr Grugeon agreed that he asked if any resident was seeking an AVO (ie Apprehended Violence Order) and offered to pay the costs of any such application. He did not recall any suggestion being made to get bikers to scare the respondents out of their residence in the village and disagreed with the proposition that residents were 'ganging up' on the respondents.
Mr Grugeon said he caused a solicitor's letter dated 21 December 2022 to be sent to Mrs Hockley-Brown (A317), saying that letter was sent after the first hearing but prior to the hearing of the appeal, related to a different matter, and was not an attempt to make the respondents leave the village. He accepted that a second termination notice dated 28 June 2023 (A320) was sent.
Mr Drake provided a statement dated 12 May 2022 (A149) which indicated the following sequence of events in 2021: (1) in late April or early May Ms Lawler confirmed that the NBN connection was in place for the respondents' site, (2) on 3 May 2021 he inspected that site to confirm that and was told by a "female resident" (obviously Mrs Hockley-Brown) that she had not contacted a service provider, (3) on 1 October that connection was made. His evidence was that all a resident had to do was arrange with a service provider, such as Telstra or Optus, for the connection to be completed and an account set up. This witness was not cross-examined.
Mrs Tull signed a witness statement dated 12 May 2022 (A155). She and her husband were said to be in a remote location at the time of the hearing and that, plus not being advised they were required for cross-examination, meant they were not able to attend the hearing (either in person or virtually).
Omitting what she said about her perception of Mr Brown, the observation evidence of Mrs Tull was that: … on or around 5 October, 2021 I was working from home and our neighbour Denis Brown from 165 walked up the back of our house, along the concrete and up to the back of our deck. He stood there staring into our home for a few minutes then walked back towards his own home, stopping to look at our garden shed, then stopped again at our garden screens, pushed and pulled them a bit then continued down our concrete to his own home.
Mr Tull also submitted a witness statement for use in these proceedings (A157), he and his wife being residents of site 163 which is adjacent to the site in which the respondents reside. His observation evidence was that in November 2021 we saw smoke coming from a fire in the back area of the respondents' site which he viewed as creating a fire risk. He also said: I have witnessed Dennis Brown taking photos with his phone of our house. He stood over towards the carpark behind our home and took what look like photos of our home. I find this behaviour threatening and intimidating.
Both Mr and Mrs Tull said that, in January 2022, when they were getting into their car and greeted Mr Brown, he replied: "got your email, see you in court" and then walked away.
Mr Braham was cross-examined. His statement (A159) included evidence of Mr Brown collecting materials and of smoke coming from the respondents' site on 15 November 2021. His observation evidence included: 8. I have a dog who I walk regularly (about 4 times per day) at various times whether it being around the Village or out in the paddocks. 9. During this time I noticed Dennis Brown on numerous occasions walking through the back yards and side entrances of people's homes that were unoccupied. …
This witness also indicated that he suffers from post-traumatic stress disorder (PTSD) for which he has regular sessions with a psychologist.
When cross-examined, Mr Braham said he had discussed what was in his statement with his wife and with Ms Bowring-Miller but denied his evidence had been influenced by either of them. When asked about his evidence that he has been approached by various residents with complaints about Mr Brown "walking and peering into people's windows on 'private' property", Mr Braham said that topic was raised by them and not him. He also said he sits on his deck and has observed matters while doing so. Further, that after what he described as the "first complaint", he had been advised by Mr Turner and Mr Grugeon not to go near Mr Brown's property.
As to the June 2022 meeting, this witness said about ten people attended that meeting. He denied there was a gang mentality in relation to the respondents but agreed that he did not want them to be living in the village. When taken to paragraphs in the statement of Ms Orlandi (A226 at [16]-[19]), Mr Braham said he agreed with what was set out in those paragraphs.
Ms Braham, who resides in site number 182, provided a statement (A153) which included the following observation evidence (as distinct from opinion evidence or hearsay evidence): 3. On or about early to mid April 2022, I noticed Denis Brown (from site number 165) walking past our property headed towards Robyn Avenue within the Village. At the point where the side of our home meets with site 180, Denis Brown stopped and looked down the private access area (between site number 180 and our site 182) back towards the rear of our property. After a short time (approximately 30 seconds) I observed Denis Brown moved on and did the same between the homes at site number 180 and 178. 4. I then observed that Denis Brown walked down between the homes at site numbers 180 and 178 to the rear of those homes, and looking into the windows at the home on site 178 as he passed. I then noticed Denis Brown exit [onto] Bellbird Avenue between the home on site number 157 and site number 159. 5. … 6. On or about early May 2022, I was sitting in my lounge room and looking out the front of our property. Denis Brown walked past and entered the line of my site, turned towards our loungeroom and stared at me. He was mouthing words, or speaking towards me with a filthy facial expression. The staring and mouthing of words or speaking continued as he very slowly walked away. 7. I was absolutely terrified from his behaviour and was visibly shaken for at least 15 minutes afterwards until my husband calmed me down. 8. … we have subsequently had our windows glazed/tinted so that Denis Brown can no longer stare into our windows and intimidate me. 9. The rear corner or Denis Brown's property faces our side deck. It has become almost unbearable for my husband and I to sit on our deck and enjoy the views due to Denis Brown continually staring at us. It feels as though every time we try to sit on our deck, Denis Brown comes out and stares over the fence at us. 10. I no longer feel safe to go [onto] our side deck unless I am with my husband.
When questioned about her evidence, this witness said she discussed her statement with others, but after she had signed it, and that she did not know what was in the statements of other witnesses. She said she has lived in the village for two and a half years, first in site number 99 before moving to site 182 in September 2021. It is noteworthy that, when recounting her evidence of the May 2022 incident during cross-examination, this witness became visibly upset. Mrs Braham said she did not go to the Police but instead took her complaint "to management".
This witness was also questioned in relation to the meeting held in June 2022. She agreed that the concerns of residents were discussed at that meeting and recalled a suggestion of contacting bikers but said that was a throwaway line that made everyone laugh. Ms Braham denied exaggerating her complaints.
In re-examination, she said she saw Mr Brown looking into the windows of a house, that was not his on two occasions and that he was looking from private, not public property.
Ms Lawler made a statutory declaration dated 8 February 2022 (A89) and a statement dated 1 December 2023 (B1). In her statutory declaration, this witness said that, after replacing Mr Turner was village manager on 21 October 2021, she attended Maitland Police Station prior to Christmas in that year after receiving emails from residents which reported concerns for their safety and invasion of privacy by Mr Brown. She was later provided with an event number and was told by Constable Bartlett that he would contact Mr Brown. It was her evidence that some residents had agreed to have their emails submitted to the Police's Aged Crime Officer.
In her statement, at [1]-[11], Ms Lawler dealt with the matter of site fees payable by the respondents.
When cross-examined, Ms Lawler indicated that she signed the 28 June 2023 notice of termination (A320) but the decision to issue that notice was made by the applicant's directors. She was also questioned in relation to the June 2022 meeting, which she said was called because residents had made complaints, were concerned, and wanted to know what would happen next. She did not recall any suggestion of getting bikers to scare the respondents and said that the meeting was "light-hearted at the end, not serious at all". As to whether there was discussion of steps to be taken to cause or persuade the respondents to leave the village, Ms Lawler could only recall the commencement of these proceedings.
Ms Leadbetter is a sales manager of the company which is the sales agent for the village. In her statement (A221A), she recounted a conversation she set out details of a conversation with Mrs Tull early in June 2023 in which she claimed that Mrs Tull said the real reason she and her husband were moving was "because of 165" and, when asked to give an example, she was told by Mrs Tull (emphasis original): … the other day, I was hanging out clothes on my clothes line and Denis was standing right at the entrance to my pathway to the clothesline. He just stood and stared at me the whole time I was handing out the clothes, only a couple of metres away from me. I refused to look at him and continued what I was doing and then went back inside having to walk back past him in his direction to get back inside my house. That is just one example of his behaviour.
A suggestion that conversation did not occur was made in cross-examination, but the witness disagreed.
Ms Orlandi signed a three-page statement on 21 November 2023 (A224) in which she indicated that she is a 65-year-old woman who lives on her own in site 163, which adjoins site 165, and that she works as a youth worker. She set out details of an incident (the earlier incident) which she said occurred between 6 and 8 November 2022, at about 9.30pm, when she was lying in her bed. Her evidence was that she heard what she described as "a gate open and close at the rear of her home". Upon getting up and going to a window whose shutters were said to be at an angle but not completely shut, she said she saw Mr Brown "standing and staring into my window", with his face almost up against the flyscreen on that window. She said: "He was wearing a black jumper with a hood. I could clearly see his face", that she slammed the shutter, and he went away.
This witness said she closed every shutter, turned on every light in the house, trembled and cried, then turned on the television until she returned to bed around 2.30am. Her evidence was that, when she next saw Mr Brown on 17 November 2023, Mr Brown "looked at me and made a nod and a smirk at me as he drive by very slowly" (the later incident). She went on to say she reported the earlier incident to an officer at Maitland Police Station on 19 November 2023.
There was also evidence that Ms Orlandi heard a conversation at some time between 12 and 15 November 2023, which Ms Bowring-Miller was having with Mr and Mrs Braham. She said that prompted her to report that earlier incident to them, whereupon they suggested she speak with a named officer at Morpeth Police Station, which she said she did on 20 November 2023.
When cross-examined, Ms Orlandi repeated the evidence given in her statement. She explained that the moon and the street lighting enabled her to identify Mr Brown and said it was "definitely Denis Brown". In re-examination, this witness said she had no doubt the person she saw was Mr Brown.
Mr Turner preceded Ms Lawler as village manager. In his statement (A222) he recalled telling the respondents there would be no site increase for the first 12 months. His recollection was that "at least two residents" complained to him about Mr Brown "walking through the village and standing and looking [into] windows of other dwellings".
Under cross-examination, this witness recalled that one complaint was from a lady who lives on the other side of the street in which the respondents live, and another was from a lady who lives up the road and came to him concerning Mr Brown looking through a window.
Ms Bowring-Miller provided a statement that was dated 12 May 2022 (A228A) in which she said: "On numerous occasions I have witnessed Denis Brown from site number 165 wandering between houses within the Village and peering into windows of other resident's houses". She also recounted occasions when Mr Brown either stared at her or into the back of the living area of her home. As a result, she went to Maitland Police Station to make a report and was given an event number. She also said she was aware that, after her report, the Police visited the respondents' site. While this witness also suggested Mr Brown's behaviour had not stopped, she did not provided details beyond saying that "Denis Brown continues to engage in the staring behaviour … and he still continues to wander between houses in the Village."
Cross-examination revealed that Ms Bowring-Miller had been told by the then manager of the village, Mr Turner, not to go near the respondents' site. When it was suggested that her reaction, as set out in her statement was disproportionate, this witness confirmed her evidence that there is a history of sexual abuse in her family and that she is worried that Mr Brown's conduct will cause her daughter not to let her grandchildren visit her.
Ms Bowring-Miller confirmed the conversation set out in the statement of Ms Orlandi (A225 at [16]-[18]). She did not agree with what was set out in Ms Matla's statement at [27]-[33] (A345). This witness agreed that she attended the June 2022 meeting which she understood to be a meeting attended by people who had made complaints in relation to the respondents. Reference was also made to a video, a copy of which was later provided (MFI 5).
Other documents. In addition to witness statements, the applicant's evidence contained other documents. An amended application (A162-171) which included an 18 February 2022 termination notice and set out alleged breaches (quoted below). It is noted that it was indicated during the hearing that some of those alleged breaches were not pressed.
The remaining pages (A3-88) comprised: 1. a disclosure statement for the respondents (A3), 2. a Lend Lease Living brochure (A12), 3. an unsigned site agreement for the respondents, with a commencing date of 13 September 2021 (A16), 4. the respondents' debit request form dated 4 October 2021 (A35), 5. an unsigned amended site agreement for the respondents, with a commencing date of 4 October 2021 (A38), 6. an 11 October 2021 letter, termination notice based on arrears of site fees, and tax invoice for $1,920, being 12 weeks at $160 pw (A57), 7. correspondence covering the period from 28 October 2021 to 12 January 2022 (A62), and 8. copies of complaints from residents regarding Mr Brown (A74-88).

Respondents' evidence

Ms Moss indicated in her statement (A335) that she and her husband live at site/lot 145, one street way from the respondents. She said there is a narrow gap of about two metres between adjoining houses in the village and that residents often walk along those gaps despite receiving emails asking them not to do so. Her evidence was that she has never seen Mr Brown walk between houses in the village or stare into anyone's windows. This witness said she could not recall any fire or smoke coming from the respondents' back yard in November 2021. Reference was also made to a letter her husband received from Mr Grugeon's solicitors, dated 27 June 2023 (A340A), that was based on allegations that Mr Moss had called him a liar and stated that he has no respect for the residents on the village.
When cross-examined, Ms Moss agreed that she is a friend of the respondents and that she is not close to Ms Bowring-Miller.
Ms Matla also provided a statement for the respondents (A342). She said she has been told that Mr Brown was walking between properties and looking in people's windows but has never been provided with evidence of that and has never seen Mr Brown do either of those things. It is not necessary to refer to paragraphs [25]-[35] in that statement, which sought to denigrate other residents and do not appear to be relevant to the issues in these proceedings.
The statement of Ms Matla also referred to the June 2022 meeting, which she said lasted for about one hour. Her evidence was that Mr Grugeon asked if anyone wanted to seek an AVO against Mr or Mrs Brown and offered to pay their costs of doing so.
When cross-examined, this witness was taken to an email (A82) from which she sought to distance herself. However, when an unredacted copy was produced (MFI 6, which late became Exhibit C) she conceded it was sent by her husband. The body of that email read as follows: On Monday 4th October 2021 at approximately 2.00pm at house 139 Morpeth Gardens. I was driving into our garage when I noticed through my windscreen a male peering into our house from our sliding glass doors. To access our glass doors you need to access the rear of our house and cross a 6 x 3 Mtrs concrete pad and step up onto our deck and cross another 3 Mtrs to the door. I quickly jumped out of the car and went to the rear deck to see who it was, but by this time the male had left our property. I witnessed this male cross a road and enter the property known as unit 165. Which I now know is his residence. This male is described as medium build and height and a bald head and a white grey beard. This incident has made us feel uneasy and unsafe when Michelle is home alone. If you require any further information don't hesitate to contact me. Regards Emil Matla Ph 0408 ******
When asked if she was aware of this complaint, Michelle Matla said she was, but it was retracted. She also said she was in the vehicle at the time of that incident. When asked to confirm that her husband lodged that complaint, Ms Matla said it was retracted because they did not want to get involved. Importantly, her evidence did not suggest it was retracted because the incident did not occur.
Mr Brown provided statements dated 1 April 2022 (A273) and 29 June 2022 (A292). The first such statement included a suggestion that Mr Turner said: "We don't put the rents up" and that they could move into site 165 and live there rent-free until it was completed. It was also asserted that complaints about him walking in between houses and looking into windows were untrue.
This statement also set out the explanations of Mr Brown in relation to a backyard fire in November 2021, allegations of stealing items from around the village, and making additions to site 165 without approval.
In his second statement, Mr Brown asserted that complaints against him started immediately after his wife wrote to Mr Motbey, a director of the applicant company, on 4 October 2021 "outlining many breaches of the NSW Fair Trading Legislation Act" (A294). This statement also included Mr Brown's denial that he is a 'Peeping Tom'.
Mr Brown recalled a 14 February 2022 visit from two Police officers, said to have been in response to a complaint by Ms Bowring-Miller, and said the comments he received from other residents led him to lodge a complaint at East Maitland Policed Station on 20 May 2022.
Leave was granted for additional evidence in chief to be given orally, in response to the evidence of Ms Orlandi and Ms Lawler. Mr Brown denied the allegations of Ms Orlandi, saying that on the evenings of 6 to 8 November 2023 had had a shower and watched Sky news to the end, which he suggested commenced at 5 pm and finishes around 11 to 11.30 pm. He said there was no-one with him at that time. Although admitting his property had a rear gate, he asserted that he has not used it for some time, it was last used 7 or 8 months ago, is now locked, and that he does not have a key to that lock.
In cross-examination, Mr Brown denied the allegations of Ms Orlandi. When asked if there was any reason why she would make up her allegations, he claimed there is a lynch mob in his vicinity and suggested Ms Bowring-Miller was a trouble-maker. He also denied the complaint made by Mr Matla.
Mr Brown said he was not aware of any complaint by Mrs Braham, that he did not know Ms Leadbetter, that he was friendly with Mr and Mrs Tull, and that he had never met Ms Orlandi. After a series of complaints were indicated (being complaints made by Ms Orlandi, Mr Braham and Mrs Braham, Ms Leadbetter, Mr and Mrs Tull and Mr Matla), Mr Brown claimed there was no basis for any of them. Mr Brown was also questioned about payment of rent (ie site fees) but the essence of his evidence was that his wife looks after such matters.
Mrs Hockley-Brown submitted three statements. They were dated 1 April 2022, 10 June 2022, and 9 August 2022. In the first of those statements (A231), she sets out what she claims occurred in relation to the entry of she and her husband into the village, including conversations with Mr Turner, who was the village manager at that time. Her evidence was that she moved into site 165 on 26 June 2021 and that it was not until September 2021 hat she was provided with a copy of the applicable site agreement.
Mrs Hockley-Brown set out the concerns she said she had in relation to various issues and said that, instead of paying site fees to the respondent, they were paid to her solicitor pending resolution of those issues.
This statement also annexed a copy of a termination notice dated 18 February 2022 (A269) which raised four matters, namely arrears of site fees and alleged breaches of three items in the site agreement. However, as indicated above, only one of those alleged breaches was pressed. The only response to those allegations in the first statement of this witness was that she was unaware what were said to be the unauthorised additions.
In her second statement (A279), Mrs Hockley-Brown responded to the statement of Mr Drake in relation to the NBN connection and to the statement of Mr Grugeon in relation to unpaid amounts. Copies bank records in relation to payments made were annexed (A281-290).
In her third statement (A298), Mrs Hockley-Brown said that on 26 May 2022, when Ms Bowring-Miller approached her husband, he commenced recording their conversation, said to be "in accordance with the advice of our solicitor".
Oral evidence-in-chief, in response to the statement of Ms Orlandi, was that Mrs Hockley-Brown took five photos on 1 December 2023 (D1-5) which were said to respectively show: (1) a closed padlock on her back gate, (2) a hinge and cobwebs on that gate, (3) its lock and latch, (4) the full length of that gate, and (5) the distance between their site and that of Ms Orlandi.
It was suggested that the back gate had not been used in the last nine months as the key to the padlock had been lost. In response to the statement of Ms Lawler (B2 at [10]), which alleged arrears of site fees of $370 and service charges of $50, it was said that $420.00 had been paid on Friday 1 December 2023, which was the last working day prior to the hearing.
In cross-examination, when taken to a letter dated 29 June 2023 which was addressed to her and her husband (B/A, ie annexure A in Exhibit B) and asked why she did not pay the increased fee until just prior to the hearing, Mrs Hockley-Brown said she had received an email from Ms Lawler saying that the site fee was not increasing until February. When asked to find that email, she said it was in her bag, but agreed it was not placed before the Tribunal.
When taken to a 31 August 2023 email (B/C) this witness claimed the Disclosure Statement said she did not have to pay for sewerage. When asked if Ms Lawler had ever told her that, the witness said "No" but then added a non-responsive comment. When taken to a Rent Summary Report (B/E), Mrs Hockley-Brown accepted that rent (ie site fees) was due from 24 June 2021 and that there had been no payments until 28 April 2022, but maintained that was because her lawyer had advised her to pay rent into his trust account until issues in relation to the site agreement had been resolved. After being taken to a 16 November 2021 email to her solicitor (A300), this witness said she had a trust receipt for the payment of $3,400 referred to in that email which, it was observed, had not been included in her evidence.
Mrs Hockley-Brown indicated that the 4 October 2021 letter to Mr Motbey (A294) was written by her because her husband is dyslexic. When taken to an application to the Tribunal dated 1 April 2022 (Exhibit E), it was said that was prepared by her then solicitor, Mr Mantaj of Conditsis Lawyers, and that there was a receipt for the transfer of money to his trust account. Again, although this witness said she could provide that receipt, it never became part of the evidence. It was accepted that it was not until an order was made in May 2022 that rent was paid.
When asked if her site fees had ever been one fortnight in advance, as required by the site agreement, Mrs Hockley-Brown said she had and when asked if she was sure of that, she replied "I'm positive". She denied that she believed that by not signing a site agreement she did not have to pay rent, but when asked for an explanation of why she did not have to pay, the answer was non-responsive.
This witness said that she had read the terms of the site agreement to her husband, including clause 14. She said she was with her husband "all day and all night" on 6, 7, and 8 November 2023, later saying that he was in his room, and she was in her room. When it was put that she would now if he had left the house, Mrs Hockley-Brown said she checks on him as he has had three heart attacks. She said she is aware of the complaints relating to his walking but said she has never sought to go with him.
In re-examination, it was suggested that Mr Brown does not go walking any more, since he has been accused of being a 'Peeping Tom'. When shown the pages that later became Exhibit F, Mrs Hockley-Brown was asked why they were only produced that day, to which she gave the non-responsive answer that they arose in previous proceedings. It is convenient to here note that Exhibit F is a document headed "Kent Law Group" which, in its bottom left corner, records: "Printed: 5/12/2023" which was the day on which it was tendered.
Other documents (A300-332). The respondents' documents included pages relating to payments of rent, photos, and a 28 June 2023 termination notice together with a 25 September 2023 email withdrawing that notice.

Applicant's submissions

In the written submissions for the applicant (MFI 10), its case was said to be based on (1) a failure to pay money, including site fees, and (2) "breaches of the Site Agreement, the Act and the Community Rules".
As to the former basis, after summarising the claims said to have been made by the respondents, it was contended that it was only by reason of Tribunal orders that arrears to December 2022 were paid. Reference was also made to failure to pay an increase in site fees and services charges, said to involve amounts of $370 and $50 respectively. It was also alleged there had been a failure to pay costs which, on 24 February 2023, the Tribunal ordered the respondents to pay, which had been assessed and resulted in a Certificate of Determination for $24,226.11 being issued on 15 September 2023 (B/F).
As to the second basis, reference was made to s 36(d) and s 38 of the Act. It was said that Mr Brown had not remedied this breach of the Act and community rules, with the contended result that neither s 122(7) nor s 93(6) applied, those being provisions in the Act which respectively empower the Tribunal to refuse to make an order when either the Act or the community rules has been breached.
After referring to the statement of Ms Orlandi, the applicant referred to relied on the decision in Bauer v Farm Cove Investments Pty Ltd [2022] NSWCATAP 14, a case in which an order was made under s 122 of the Act. The conduct in this instance was said to be more serious due to "the psychological [effects] and threats to safety which other residents have experienced".
Oral submissions began by noting that, despite Mrs Hockley-Brown claiming to have documents outside the hearing room, Exhibit F was a document obtained from the relevant law firm that day which suggested someone had to request a copy to be printed and sent from that law firm.
In relation to the issues raised by the respondents in relation to the site agreement and the payment of site fees, it was submitted that the Tribunal needs to make an order that the agreement not signed by the respondents has a commencement date and is enforceable from 13 September 2021 otherwise the respondents only occupy their sit under a licence that can be terminated at the will of the applicant.
The applicant's case was said to be that the respondent had complete disregard for their obligation to pay site fees and only paid when it became a significant problem. It was noted that Ms Lawler was not cross-examined on her schedule (B/E) and submitted that, while Mrs Hockley-Brown claimed her site fees were up to date, the respondents are two weeks behind, and that no reasonable explanation has been provided for either why site fees were not paid or why the site agreement has not been signed. It was contended that the respondents were content to live in the village but raised spurious matters that had ben determined against them in December 2022.
The evidence of Mr Grugeon was said to have been largely untested and that there was nothing untoward in the meeting that was called. It was submitted that the NBN issue was spurious because all the respondents had to do was contact a service provider. It was noted that Mr Turner's evidence denied making any of the alleged guarantees or undertakings. Further, that his evidence of receiving complaints about Mr Brown was not tested.
It was noted that the applicant was required by s 38 of the Act to provide quiet enjoyment to village residents and that six separate complaints had been made. After referring to each of the complaints, it was said there was added weight to that evidence because they were rendered consistent by the similarity of the conduct that was the subject of the complaints. It was noted that the list of considerations set out in s 122(6) of the Act was a non-exclusive list, and that the complaints regarding site fees and conduct spanned a two-year period.
As to Ms Orlandi's evidence, it was submitted there was an inconsistency in that Mr Brown said he was alone, but Mrs Hockley-Brown said she checked on him regularly. The applicant's case was that even if allowance was made for the allegations in relation to Mr Brown's conduct being serious, in accordance with what was said in Briginshaw v Briginshaw [1938] HCA 34 (Briginshaw), the Tribunal should have no doubt in relation to the evidence of Ms Orlandi as her evidence was that she was close to Mr Brown, she said she was sure it was him, and her evidence was not shaken by cross-examination.
The suggestion of people conspiring against Mr Brown was denied and reference was made to the evidence of Ms Matla. It was contended that the evidence of both respondents should be considered unreliable.
In relation to Exhibit F, it was noted that by 21 December 2021, when $3,720 was paid from a solicitor's trust account to the respondents, there was more than that amount owing. The Tribunal notes that the period from 13 September 2021 to 21 December 2021 is 99 days which suggests that at least 14 weeks at $320, which is $4,480 should have been paid. It was also noted that there was no trust account statement provided by the respondents in respect of the second solicitor they retained, being a lawyer in the firm known as Conditsis Lawyers, who were acting for the respondents when their application dated 1 April 2022 was signed by their solicitor at that time.

Respondents' submissions

The written submissions for the respondents (MFI 3) noted that the Tribunal was required, by s 122 of the Act, to be satisfied not only that the respondents had breached their site agreement but also that the breach was sufficient to justify termination. It was also noted that the matters which the Tribunal was required to consider included the matters set out in s 122(6) of the Act and reference was made to the decision in Shojai v INA Operations Pty Ltd ATF INA Operations Trust #6 [2023] NSWCATAP 309, quoting from [31].
The respondents' case was said to be (1) there must be a serious and persistent breach, (2) a breach sufficient to justify termination, and (3) refusal to make a termination order is the breach has been remedied.
Omitting submissions in relation to matters no longer pressed, it was submitted that allegations in relation to Mr Brown's conduct were minor, that his denials and explanations should be accepted, and that the allegations were so grave that they could not be considered to have been made out, having regard to what was said in Briginshaw.
It was also contended that, even if the allegations in relation to Mr Brown's conduct were found to have been established, there was no allegation in relation to the conduct of Mrs Hockley-Brown. Further, that if a termination order was made, the order for possession should be suspended for at least 90 days. In the event the respondents were successful, an application for costs was foreshadowed.
In oral submissions, it was suggested they key point in relation to site fees was that the respondents had made payments and that any failure to pay site fees had been remedied in May 2022. Reference was made to the evidence of Mrs Hockley-Brown as to payments that had been made, which evidence was said to have not been challenged.
It was contended that the applicant is not entitled to go beyond what was set out in its amended application, which did not contain any reference to a breach of the community rules, for which s 93 of the Act was said to require notice. Reference was made to s 122(6) which included a reference to previous breaches. It was contended that the Tribunal could not consider matters which occurred after the termination notice or matters which had not been particularised. As a result, it was suggested the applicant was confined to the orders sought in the amended application (A162), what was specified in the termination notice (A170) and the details provided in the annexure to that notice (A171).
After making submissions in relation to arrears of site fees, it was contended that the respondents had paid up to 1 December 2023 and that, even if they had not paid two weeks in advance, that did not provide any basis for termination because s 122(4) of the Act requires site fees to have remained unpaid for a period of 30 days.
As to the allegations that Mr Brown had trespassed down paths between properties and was a 'Peeping Tom', it was suggested the evidence was not plausible and that there was "no real contemporaneous evidence". It was submitted that there was evidence of complaints from four households.
First, it was contended that the complaints of Mr and Mrs Tull should be given no weight because they were no longer residing in the village and were not available for cross-examination. Secondly, Mr and Mrs Braham were said to have had an unusual reaction. Thirdly, that the evidence of Ms Bowring-Miller was involved bias. Fourthly, the evidence of Ms Orlandi was criticised and was said to have bene contradicted by the photos which became Exhibit D. There was a submission that there was evidence to the contrary from two households, being the evidence of Ms Moss and Ms Matla.
It was also submitted that Mr Grugeon has sought to put pressure on the respondents to leave the village by sending a letter from his solicitor to Mrs Hockley-Brown (A317). Further, that his conduct included having a second termination notice sent to the respondents, calling a meeting of those who had complained about them, offering during meeting to pay their legal fees for obtaining an AVO, and an alleged comment at that bikies should be used to get the respondents to leave the village. The respondents' case was that the only quiet enjoyment that had been breached was theirs.
Finally, it was said that if a termination order was made then the respondents should be given 90 days in which to find alternative accommodation by reason of their age and limited means. The desire to be heard on the question of costs, in the event that the respondents were successful in their defence of the application, was reiterated.

Submissions in reply

It was noted that the evidence was that the respondents had been notified on 31 August 2023 that they were not making the required payments (B at [6] and B/C). Further, that Mr Brown's claim to have obtained permission from Mr Grugeon to use scrap materials was not put to him in cross-examination, and that the claim that Mr Turner said site fees would not increase was not put to him in cross-examination. There was reference to the amended application, which included references to the rules (at A162 and A165).

Relevant law

The Act imposes responsibilities on home owners which include, in s 36(d): not to interfere with, and to ensure as far as practicable that other occupants living with the home owner or guests do not interfere with, the reasonable peace, comfort or privacy of the community's residents
It is noted that s 38 of the Act imposes a duty on the applicant as the operator of the village. That section reads as follows: (1) The operator of a community must not unreasonably restrict or interfere with, or permit any unreasonable restriction or interference with, a home owner's privacy, peace and quiet, or proper use and enjoyment of the residential site and the community's common areas. Maximum penalty - 10 penalty units. (2) The Tribunal may, on application by a home owner, make an order resolving a dispute concerning an operator's compliance with this section.
In the Act, s 122 is headed "Termination by operator for breach of agreement". It provides as follows: (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.
Termination orders are covered by s 130 which is in the following terms: (1) The Tribunal may, on application by the operator of a community, make a termination order in accordance with this Division. (2) A termination order may be made either - (a) if vacant possession of a residential site is not given by the specified date as required by a termination notice, or (b) if an application for the order can be made under this Part without the need for a termination notice.
Possession orders are dealt with in s 131 which is quoted below: (1) If the Tribunal makes a termination order, it must also make an order for possession of the residential site (a possession order) specifying the day on which the possession order takes or took effect. (2) The Tribunal may suspend the operation of a possession order if it is satisfied that it is desirable to do so, having regard to the relative hardship likely to be caused to the operator and home owner by the suspension.

Consideration

The application, dated 21 January 2022, relied on a notice of termination dated 11 September 2021 (A59). That was superseded by an amended application (A162) which added reliance on a termination notice dated 18 February 2022 (A170).
In the amended application, the section of the application headed "Order/s sought" there appeared the details provided in the amended application were as set out below: An order in respect of a breach of the agreement (RLLC Act Section 157) An order relating to a community rule that there is in force in the community (RLLC Act Section 95(1)) An order for termination of the Residential Site Agreement for serious misconduct (RLLC Act Section 129) An order for termination of the Residential Site Agreement where the resident had not complied with a notice of termination (RLLC Act Section 130)
In the section of the application headed "Reasons for asking for the orders?" the following words appeared: The tenant has not paid any site fees since occupancy date of 25th June 2021. Arrears to date is (sic) $4137.66. We are seeking orders of vacant possession, based on rent arrears and breaches of the Residential Site Agreement and Community Rules. In Addition to rent arrears the tenants have breached clauses 14 & 21 of the Resident Site agreement and clause 3 of the community rules. We identify the following breaches: 1. Lighting a fire on site 165 2. Interfering with peace and privacy of other village residents and trespassing on other residents (sic) sites without approval 3. Additions to dwelling without approval.
The termination notice dated 18 February 2022 (A170) indicated the grounds as breaches of the site agreement and arrears of site fees of at least 90 days. Breaches were said to be set out in Annexure A (171) which read as follows: Item 14 Quiet enjoyment - Interfere with Privacy of community resident. Lighting a fire on site 165 - affecting adjoining residents' comfort Threatening behaviour to residents and interfering with peace and privacy of other village residents and trespassing on other residents' sites without approval. Item 15 Stealing from sites around the village, including village construction storage area - Illegal purpose. Item 21 Additions to dwelling without village operator's approval.
During the hearing, it was indicated that lighting a fire, stealing, and unauthorised additions were not pressed, leaving only arrears of site fees and the alleged breach of Item 14 based on "Threatening behaviour … approval".
It is not necessary to decide issues raised by matters which were not pressed, but the evidence given on those matters may be relevant to the assessment of witnesses.

Assessment of witnesses

In Fox v Percy [2003] HCA 22 (Fox) at [30-31], Mc Hugh J cautioned against deciding a case based on the appearance of a witness, sometimes referred to as the demeanour of the witness, suggesting it was preferable to base conclusions on contemporary materials, objectively established facts, and the apparent logic of events. The position now appears to be that deciding a case based on demeanour should be the last resort and can only be justified in clear cases. It is also clear that a contemporaneous document (ie a document prepared at the time of the events in question) carries greater weight that a document prepared for the purpose of the litigation.
In Ashby v Slipper [2014] FCAFC 15 at [77] it was said that "as a general proposition, evidence, which is not inherently incredible and which is unchallenged, ought to be accepted: Precision Plastics Pty Ltd v Demir (1975) 132 CLR 372 at 370-371 (per Gibbs J, Stephen J agreeing, Murphy J generally agreeing). The evidence may of course be rejected if it is contradicted by facts otherwise established by the evidence or the circumstances point to its rejection."
There is nothing in either the evidence or conduct of Mr Grugeon that warrants concern. As a director of the applicant company, which is the operator of the village, he took reasonable steps after complaints were made and the Police had been contacted by residents, issuing a reminder letter (A148) and calling a meeting of those who had complained in order to discuss what might be done.
Asking if any resident wished to obtain an AVO and offering to pay any legal costs is a softer alternative to terminating the respondents' occupation of their site. That conduct is consistent with seeking to comply with the duty of care which the operator of a village owes to its residents. The suggestion that the letter from his solicitors to Mrs Hockley-Brown (A317) was an attempt to get the respondents to leave the village overlooks the fact that a similar letter was sent to Mr Moss (A340A) but there was no suggestion Mr Grugeon was seeking to have them leave the village.
The evidence of Mr Drake was unchallenged and is accepted.
Mr Tull and Mrs Tull both provided witness statements but were not able to be cross-examined. The evidence of Mr Tull suggests Mr Brown stared into his home. The evidence of Mrs Tull was that she had seen Mr Brown taking photos of their home. She also gave evidence of seeing smoke come from the back yard of the respondent's site in November 2021. As the outcome of these proceedings can be reached without including this evidence, it is only necessary to observe that this evidence is consistent with that of other witnesses and that, as former residents of the village, it is difficult to see how it could be said they are 'ganging up' with others to get rid of the respondents from the village.
Omitting what Mr Braham was told by others, his evidence was of Mr Brown walking through the back yard and side entrance of unoccupied homes. His evidence that he suffers from PTSD was not disputed.
Ms Braham, who name was Ms Tring prior to her marriage, gave detailed observation evidence and her reaction, during cross-examination, when taken back to her evidence relating to May 2022 was clearly spontaneous and not manufactured. Even heeding what was said in Fox, that aspect of her evidence was telling in favour of its acceptance. No valid reason was advanced for not accepting the evidence of either Mr or Mrs Braham and the Tribunal is unable to discern any such reason. As a result, their evidence is accepted.
Ms Lawler gave evidence that was not damaged by cross-examination and is accepted, including her evidence that the suggestion of getting bikers to help remove the respondents from the village was a light-hearted comment made at the end of the meeting held in June 2022.
The statement of Ms Leadbetter only goes to a conversation she said she had with Mr and Mrs Tull which could serve to corroborate their evidence. While there is no reason why her evidence should not be accepted, it is not necessary to include this evidence in relation to the issue of Mr Brown's conduct in view of the Tribunal's approach of the evidence of Mr and Mrs Tull.
Ms Orlandi gave evidence of what she maintains occurred on a night early in November 2023. Her weight of her evidence was not diminished by cross-examination. The evidence included what she heard on that occasion (A224 at [4]), which was not observation evidence. The evidence of the respondents as to their back gate, if accepted, goes no higher than ruling out that was Ms Orlandi heard was not their back gate. Importantly, Ms Orlandi maintained her evidence of what she saw, and remained definite that the person she saw on that occasion was Mr Brown. There is, to adopt the words used in Fox at [30], an apparent logic in Ms Orlandi not reporting the incident to the Police until 19 November 2021, shortly after further conduct towards her by Mr Brown on 17 November which she said made her feel "absolutely horrible and sick in the stomach" (A225 at [13]). Further, it was the evidence of Ms Orlandi that this was her next day off. For the reasons indicated below in relation to the evidence of Mr Brown, her evidence is preferred to his.
Mr Turner was the manager of the village to Mr Lawyer. His evidence included that he received complaints in relation to the behaviour of Mr Brown. While his evidence is accepted, it only serves to confirm that complaints were made to him. It must also be noted that his evidence was that he said site fees would not be increased for the first 12 months, contradicting the evidence of Mrs Hockley-Brown (A232 at [14]) and that his evidence on this point was not challenged. His evidence is preferred to that of Mrs Hockley-Brown.
Ms Bowring-Miller gave written and oral evidence. In closing submissions for the respondent, it was suggested that her evidence involve bias. It is clear this witness does not get along with Mr Brown. If hers were the only evidence against Mr Brown, and if his evidence was reliable, then there might be a basis for viewing her evidence with caution. However, in circumstances where the evidence of other witnesses serves to corroborate the evidence of Ms Bowring-Miller, and his evidence is not considered to be reliable, the Tribunal prefers her evidence over his.
The evidence of Ms Matla is unreliable and cannot be accepted unless reliably corroborated because of the email sent by her husband (A82), combined with her evidence of being in the car with him when Mr Brown was seen peering into their home. That email is, contrary to the submission made for the respondents, contemporaneous evidence of what occurred on 4 October 2021 and suggests this incident had an impact on Ms Matla due to the inclusion of the words (emphasis added): "This incident has made us feel uneasy, and unsafe when [Mrs Matla] is home alone." The suggestion of Ms Matla that the complaint was withdrawn fell short of saying that the incident did not occur. Support for the view that a complaint was made by or on behalf of Ms Matla is found in the fact that she was invited to the meeting held in June 2022. Ms Matla appears to have placed more weight on her good relationship with the respondents, but not with Ms Bowring-Miller, than her obligation to tell the truth.
Ms Moss was another witness who was a friend of the respondents but not Ms Bowring-Miller. Her evidence does not aid the defence of the respondents because saying that she has not seen Mr Brown walk between houses in the village or stare into anyone's windows does not mean that never occurred.
The evidence of Mr Brown and his wife, Mrs Hockley-Brown, contains a clear inconsistency: he claimed there was no-one who could verify he remained at home on the evenings of 6 to 8 November 2023 between 5pm and 11 to 11.30pm while she sought to provide that verification.
Accepting the email of Mr Matla has the consequence that Mr Brown's denial of what that email said he did cannot be accepted. His evidence cannot be considered reliable.
Mrs Hockley-Brown more than once suggested she had a document in the precincts of the hearing room. First, she said she had an email from Ms Lawler saying that the site fee was not increasing until February in her bag, but that document was never produced. Secondly, she claimed to have a trust account receipt for the payment of $3,400. However, the trust account statement which became the first two pages of Exhibit F, as was observed in closing submissions for the applicant, was printed in the relevant law firm on the day she gave evidence and the trust account receipt which was produced and became the third and final page of Exhibit F was for an amount of $900, not $3,400. Despite the suggestion of Mrs Hockley-Brown that she had a trust account receipt from the second firm of lawyers she used, Conditsis Lawyers, that document was never produced.
No explanation was provided for the absence of these documents from her statements despite her defence to the rent arrears claim being that money was paid into a solicitor's trust account instead of to the applicant. There were also multiple occasions when this witness gave non-responsive answers, seeking to advance her case rather than to provide an answer what was asked. Further, as noted above, the evidence of this witness was not consistent with that of her husband in relation to the evenings of 6 to 8 November 2023. The evidence is this witness must be treated with caution.
It remains to record that the suggestion that the residents of the village were 'ganging up' on Mr Brown is rejected. The evidence does not support that to be the case and it is noted that such a suggestion does not appear to have been put to any of the witnesses called by the applicant. Common complaints in a residential community may be expected to be a subject of discussion but the decision to pursue a claim for termination was that of the applicant, based on complaints which it received and after considering alternatives to termination, as revealed by its warning letter and the June 2022 meeting.

Findings of fact

From the evidence, taking into consideration both the written and oral submissions of counsel, the Tribunal makes the following findings of fact: 1. On 23 June 2021 the respondents began living in site 165 in the village operated by the applicant. 2. On 11 September 2021 the applicant issued a termination notice to the respondents, based on arrears of site fees. 3. On 13 September 2021 the applicant provided the respondents with a site agreement which they have never signed. The applicants have, however, continue to live in site 165 and have made payments in respect of site fees. 4. At about 2 pm on 4 October 2021, Mr Brown was on Mr and Mrs Matla's site, peering into their house through glass sliding doors. 5. That incident, which the subject of a complaint that was later emailed, made both Mr and Mrs Matla feel uneasy and unsafe when Mrs Matla is home alone. 6. On 6 October 2021, Ms Bowring-Miller submitted a complaint to the then manager of the village, Mr Turner, in relation to her having observed Mr Brown "looking into houses and private areas". 7. Prior to 21 October 2021, while he was the manager of the village, Mr Turner received complaints in relation to the conduct of Mr Brown from at least two residents of the village. 8. After commencing as the manager of the village on 21 October 2021, Ms Lawler received complaints from residents expressing concern for their privacy and safety due to the conduct of Mr Brown, which caused her to make a report to the Police prior to Christmas in 2021. 9. Prior to November 2021, Ms Bowring-Miller observed Mr Brown, on occasions as frequent as once per week, standing on a vacant block of land adjoining her home and staring into the back of the living area in her home. 10. On 30 November 2021, Ms Bowring-Miller sent emails complaining about the conduct of Mr Brown in "looking into people's windows" and following her back to the front of her house. 11. On 30 November 2021 a director of the applicant, Mr Motbey, was advised of four complaints relating to the respondents, two of which were "Peeping Tom" and Mr Brown "looking through back window". 12. On 21 January 2022 Mr Bowring-Miller reported the conduct of Mr Brown to the Police and, because of that conduct, she keeps her house locked when she is at home. 13. On 3 February 2022 the applicant issued a reminder letter which referred to trespassing and to the need "to ensure that all residents can enjoy a peaceful, comfortable, private and safe environment in their home and site". 14. On or about 14 February 2022 two Police officers spoke to Mr Brown in response to complaints they had received. 15. On 18 February 2022 the applicant issued a termination notice to the respondents, which included an allegation of "Threatening behaviour to residents and interfering with peace and privacy of other village residents and trespassing on other residents' site without approval". 16. In early to mid-April in 2022 Mr Brown, while standing on private property, looked into the windows of site 178 as he walked between sites 178 and 180. 17. In early May 2022 Mr Brown, while standing on private property, looked into Mrs Braham's lounge room and stared at her, speaking words she could not hear, and looking at her in a manner which left her visibly shaken for not less than 15 minutes. 18. After that May 2022 incident, Mr and Mrs Braham had their windows glazed/tinted. 19. Mr Brown has also stared at Mr and Mrs Braham as they sat on their side deck such that Mrs Braham no longer sits on that deck unless she is with her husband. 20. In June 2022 the applicant called a meeting to which were invited residents who had complained about the conduct of Mr Brown. Those present on that occasion included Mr Grugeon, Mr and Mrs Braham, Ms Lawler, Ms Bowring-Miller, and Mrs Matla. 21. That meeting was called due to complaints that had been made to the applicant and to the Police in relation to the conduct of Mr Brown. During that meeting Mr Grugeon offered to pay the legal fees of anyone who wished to seek an AVO against Mr Brown. During that meeting, and likely at the conclusion of that meeting, someone suggested, in jest, that bikers could be used to help remove Mr Brown from the village. 22. On 28 June 2023 the applicant issued a further termination notice to the respondents which was withdrawn on 25 September 2023. 23. On the evening of either 6, 7 or 8 November 2023, Ms Orlandi observed Mr Brown, wearing a black jumper with a hood, standing at the rear of her home, close to a flyscreen on a window with shutters inside it, which shutters she closed and went away (the earlier incident). 24. As a result of that conduct, she closed every shutter, turned on every light in her house, trembled and cried, then turned on the television until 2.30 am before returning to her bed. 25. On 17 November 2021, as he drove slowly past Ms Orlandi, Mr Brown looked at her then nodded and smirked at her (the later incident). That made her feel "absolutely horrible and sick in the stomach". 26. After that conduct, on 19 November 2021, her first day off work after the earlier incident, she reported Mr Brown's conduct to the Police.
It should be recorded that those findings of fact do not cover issues not pressed or the evidence of Mr Tull, Mrs Tull or Ms Leadbetter.

Alleged breach - arrears

An alleged breach was, in both the application and the amended application, expressed in terms of arrears of site fees. The amount said to be owing at the date of the application was specified.
Plainly, once an allegation of arrears of site fees is made, the Tribunal could consider arrears of site fees at the time of the hearing, and not just at the time of the application or the amended application, since (1) any payments in respect of the arrears at the date of the application would be relevant, and (2) any continuing arrears would be relevant to the question of whether the breach was serious or persistent, noting that s 122(1) requires either of those adjectival tests to be satisfied before a termination notice can be validly issued.
During the hearing, allegations were made as to matters such as (1) why payments were made to a solicitor's trust account instead of the applicant, (2) what were the arrears at the date of the hearing, and (3) whether the respondents had consistently been in arrears because the site agreement required them to be two weeks in advance with their payment of site fees.
The position appears to be that there were no arrears at the time of the hearing due to a payment made on the last working day prior to the hearing and that, while the respondents had not paid two weeks in advance as required by their site agreement, such arrears had not been owing for more than 30 days, as required by s 122(4). Further, any breach of the respondent's obligation to pay site fees in that regard is a matter that could easily be remedied.
Without delving into the details of what amount was paid and on what date, it is sufficient to record the following findings: 1. The respondents initially paid site fees to a solicitor, instead of to the respondent. 2. The respondents have never paid site fees to the applicant such as to be two weeks in advance, as required by their site agreement. 3. The respondents have thereby been persistently in breach of their site agreement. 4. Hence, there was a valid basis for the issue of the termination notice dated 18 February 2022 (because s 122(1) requires the breach to be either persistent or serious). 5. A breach of not having paid two weeks in advance is not considered sufficiently serious to justify a termination, as required by s 122(5). 6. Further, in the exercise of the discretion conferred by the inclusion of the word "may" in s 130(1), the Tribunal is not satisfied that a termination order should be made on this ground.
However, in view of the Tribunal's determination on relation to the alleged breaches described as behaviour, set out below, any finding in respect of this alleged breach is of no consequence.

Alleged breaches - behaviour

While it was incorrectly contended for the respondents that the amended application did not contain any reference to the rules, s 93 does not appear to assist the applicant because no notice was given under s 93(2). Also, s 129 does not appear to be applicable and was not argued during the hearing. Hence it is only necessary to consider s 122 which applies to termination by an operator for breach of a site agreement.
Although there does appear to be a failure on the part of the respondents to pay a costs order dated 15 September 2023 (B/F), that was never particularised as a basis for termination with the result that its significance rises no higher than it being an amount of $24,226.11 which the applicant is entitled to recover from the respondents.
For the respondents, it was contended that there must be a serious and persistent breach before a termination order can be made. However, as the words used in s 122(1) are "seriously or persistently", those adverbs impose requirements that are alternatives and are cumulative.
The decision of the Appeal Panel, Hockley-Brown v Metford Road Realty Pty Ltd t/as Morpeth Gardens Village [2023] NSWCATAP 151 records, at [6], that the orders made at the first hearing included an order that referred to "the site agreement dated 13 September 2021". That aspect of the orders was not challenged on appeal, there was no submission made on behalf of the respondent that the unsigned agreement did not apply, and both parties and their lawyers have acted on the basis that their relationship is governed by that agreement. However, for the avoidance of doubt, an order should be made to confirm that aspect of these proceedings.
In the site agreement, item 14 provides as follows: You agree not to interfere with … the reasonable peace, comfort or privacy of the community's residents.
Based on the findings of fact set out above, the Tribunal is satisfied that Mr Brown's conduct, prior to the notice of termination dated 18 February 2022, constituted a breach of Item 14 in the following respects: 1. Peering into the house of Mr and Mrs Matla on 4 October 2021. 2. Looking into houses and private areas prior to 6 October 2021 and prior to 30 November 2021. 3. Staring into the back of the home of Ms Bowring-Miller as frequently as once a week, prior to November 2021.
In addition to that conduct, the effect of that conduct must also be considered relevant. As to (1) above, Mr Matla said: "This incident has made us feel uneasy and unsafe when Michelle is home alone." As to (2) and (3) above, Ms Bowring-Miller keeps her house locked when she is at home.
Both that conduct and those effects of that conduct warrant a further finding that those breaches of Item 14 were serious, not minor, breaches of that obligation. Further, the evidence of multiple complaints justifies an additional finding that those breach of Item 14 were also persistent.
Based on those findings, the Tribunal determines that the applicant's 18 February 2022 termination notice was valid by reference to s 122(1). That termination notice specified 21 May 2022 as the date by which vacant possession should be given and, as that is a period greater than 90 days, there was compliance with s 122(2).
In the closing submissions for the respondent, it was also suggested that the Tribunal could not take into consideration conduct after the termination notice. From what is set out above, the Tribunal does not consider it necessary to consider conduct after 18 February 2022 to warrant a determination that Item 14 of the Site Agreement was seriously and persistently breached.
In relation to a claim that a resident had site fee arrears as at the date of a termination notice, it is difficult to accept that what occurred after the date of that termination notice should be ignored. Common sense alone would suggest that the position as at the date of the hearing could be considered. Why should the position be any different when the alleged breach is not arrears of site fees but the conduct of a resident? The Tribunal does not accept the respondents' contention that the fact that s 122(6) permits the Tribunal to consider previous breaches operates to exclude any consideration of subsequent breaches for the following reasons.
First and foremost, s 122(6) specifically says that the Tribunal is not limited to the listed considerations.
Secondly, this contention appears to be based on the principle of statutory interpretation commonly expressed as expressio unis est exclusio alterius (the express mention of one thing is the exclusion of another thing) but ignores the maxim expressum facit cessare tacitum (there is no room for an implication in the face of an express provision). As the High Court observed in Spence v Queensland [2019] HCA 15 at [302] (citations omitted): It has been said that there are perhaps few maxims of interpretation that "have been more frequently misapplied and stretched beyond their due limits" than the maxim expressio unius est exclusio alterius, which treats the express mention of one thing as indicating the exclusion of another. Like all language conventions much depends upon context, including expectations based upon past experience.
In the context of s 122(6), when matters including breaches occurring before the issue of a termination notice are said to be a matters which "The Tribunal may consider (but is not limited to considering) …" there can be no statutory justification for excluding breaches occurring after the issue that termination notice.
Thirdly, it was suggested that breaches alleged to have occurred after the 18 February 2022 termination notice were not particularised, but the Tribunal is not a court of pleading and notice of an allegation is provided by the evidence upon which a party intends to rely and not by particulars.
Fourthly, s 36 of the Civil and Administrative Tribunal Act 2013 (NSW) sets a guideline for the Tribunal of "the just, quick and cheap resolution of the real issues in the proceedings" and it would be contrary to that goal to require an operator to lodge separate, subsequent proceedings against a resident to have considered any breaches occurring after the issue of a termination notice. Multiple applications, multiple hearings, and multiple costs are an avoidable consequence if that fundamental guideline is followed and applied.
Fifthly, any consideration of evidence of subsequent breaches would give rise to an issue estoppel (Blair v Curran [1939] HCA 23) that would bind the parties in any subsequent proceedings. Indeed, not raising subsequent breaches in these proceedings could, in any subsequent proceedings, be said to be something that could and should have been raised in the earlier proceedings: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45.
Based on the findings of fact set out above, the Tribunal is satisfied that Mr Brown's conduct, after the notice of termination dated 18 February 2022, constituted a breach of Item 14 in the following respects: 1. Looking into the windows of site 178 from private property in April 2022. 2. Looking into Mrs Braham's lounge room in early My 2022, staring at her, and speaking words she could not hear. 3. Subsequently, staring at Mr and Mrs Braham while they sit on the deck at the side of their home. 4. Standing at the rear of Ms Orlandi's home, close to a flyscreen on the window with shutters, at about 9.30 pm in the evening of either 6, or 7, or 8 November 2023. 5. When driving past Ms Orlandi on 17 November 2021, looking at her, nodding and then smirking at her.
In addition to that conduct, the effect of that conduct must also be considered relevant. As to (2) above, the incident left Mrs Braham visibly shaken for not less than 15 minutes and her memory of that incident is such that it caused her to become visibly upset when she was asked to recall it while giving evidence. As to (2) and (3) above, Mr and Mrs Braham had their windows glazed/tinted. As to (3) above, Mrs Braham no longer sits on her deck unless she is with her husband. As to (4) above, Ms Orlandi closed every shutter trembled and cried, and did not return to her bed until 2.30am. As to (5) above Ms Orlandi said she felt "absolutely horrible and sick in the stomach".
Both that conduct and those effects of that conduct warrant a further finding that those breaches of Item 14 were serious, not minor, breaches of that obligation. Further, the evidence of multiple complaints justifies an additional finding that those breach of Item 14 were also persistent.
As with the conduct prior to the notice of termination, that conduct was considered sufficiently serious by the residents affected that reports were made to the Police who considered the matter sufficiently serious to visit Mr Brown and speak to him. It is also to be noted that the conduct after that termination notice was issued resembles and is consistent with the conduct prior to the issue of that termination notice.

Section 122(5) of the Act

The Tribunal is satisfied that a valid termination notice has been given, that the respondents have not vacated their residential site, and that there have been breaches of the site agreement. So far as s 122(5) is concerned, that leaves the question of whether the breaches are, in the circumstances of this case, sufficient to warrant termination. Even if confined to the period prior to the issue of the termination notice, having regard to the matters set out in the next paragraph, the Tribunal is satisfied that the breaches are sufficient to justify termination. The basis for that determination becomes even stronger if breaches after the issue of the termination notice are considered in addition to those prior to the issue of that notice.

Section 122(6) of the Act

When assessing the circumstances of this case, the Tribunal has considered the following matters: 1. The nature of the breach is that Mr Brown was looking into other people's homes on occasions, the first such occasion being the house of Mr and Mrs Matla on 4 October 2021. That incident made Mrs Matla feel unsafe when she is alone at home. Subsequent breaches caused Ms Bowring-Miller to keep her house locked when she is at home. 2. In this case, the circumstances better characterised as a breach on 4 October 2021 with subsequent breaches, rather than a breach with previous breaches. 3. There is no evidence the respondents took any steps to remedy the breaches, either before or after the notice of termination was issued. 4. Prior to issuing the termination notice, the applicant lodged a report with the Police and sent a warning letter to residents. Prior to commencing these proceedings, the applicant called a meeting of those who had made a complaint in respect of the conduct of Mr Brown at which meeting options other than termination, such as an AVO, were raised for consideration. 5. The history of the respondents' occupation of their residential site in the village is that they commenced occupancy in June 2021 and, after being provided with a site agreement on 13 September 2021, the first breach occurred less than a month later, on 4 October 2021.
In considering the circumstances of this case, the Tribunal notes that there were similar complaints from multiple residents and that those complaints were reported to the Police, both by the applicant and by residents.
Further, it must be noted that the obligation imposed by Item 14 of the site agreement mirrors s 36(d) of the Act with the result that any breach of Item 14 is also a breach of the Act. It is also relevant to note that s 38 of the Act imposes a duty on the operator which may be summarised as requiring the provision of quiet enjoyment to the residents of the village.

Section 122(7) of the Act

There is no basis for a finding that the breaches have been remedied. Indeed, the nature of the breaches is such that was done cannot be undone. The fact that the breaches continued over a period of more than two years, from October 2021 to November 2023, the latter date being just a few weeks prior to the hearing, suggests that Mr Brown has not changed his ways such as might provide support for a finding that he has remedied his conduct.
When considering the issues relating to the alleged breaches based on the conduct of Mr Brown, the Tribunal has borne in mind what was said in Briginshaw, noting the serious nature of the allegations which carry the potential consequence for Mr Brown and Mrs Hockley-Brown that they will have to move their home away from the village where they currently reside. However, the Tribunal is comfortably satisfied that, weighing up the evidence while bearing in mind the seriousness of the consequences for the respondents, the Tribunal's determinations are warranted by the evidence.
For the sake of completeness, the Tribunal notes the claim, made during closing submissions for the respondent, that there was a conspiracy to have the respondents leave the village. While it is understandable that a meeting held in June 2022, to which those who had complained were invited, could give rise to that impression, that claim was not put to any witness and the evidence does not justify any such finding. Further, during those submissions, it was suggested the Tribunal should consider the denials and explanations provided by Mr Brown. An assessment of his evidence warrants a rejection of his denials and no adequate explanation for his conduct was established.
While it was noted that the conduct allegations only related to Mr Brown, and not Mrs Hockley-Brown, the reality is that there is only one site agreement and if the conduct of Mr Brown warrants the termination of that agreement, then the absence of any relevant conduct on the part of Mrs Hockley-Brown does not provide any defence to breaches based on his conduct.

Termination order

Being satisfied that a termination order is warranted, s 131(1) requires that a date for possession be specified in that order and, for an order made on 15 January 2024, the date of possession should be specified to be 16 January 2024, to give immediate effect to that order.

Possession order

However, s 131(2) gives the Tribunal the power to suspend that order for possession. Noting that s 122(2) requires that a 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", and that the effect of a termination order is that the respondents will not only need to find alternative accommodation but also need to make arrangements to move to that alternative accommodation, the Tribunal is satisfied that the request for a period of 90 days, as sought in the closing submissions for the respondent, should be granted.
Deferring an order for possession to be given on 16 January 2024 by a period of 90 days gives 15 April 2024 as the date for an order based on the exercise of the discretion conferred by s 132(2).

Costs

It was agreed that the only remaining issue as to costs was the costs of this hearing. As a result, it is not necessary to consider either the costs of the first hearing or any aspect of the costs of the appeal.
The effect of s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) is that s 60(1) provides that "Each party to proceedings in the Tribunal is to pay the party's own costs" but s 60(2) relaxes that default position by providing that "The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs".
The following non-exhaustive list of considerations is set out in s 60(3): 1. whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, 2. whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, 3. the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, 4. the nature and complexity of the proceedings, 5. whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, 6. whether a party has refused or failed to comply with the duty imposed by section 36(3), 7. any other matter the Tribunal considers relevant.
It is well-established that the adjective "special" requires circumstances that are out of the ordinary but do not need to be extraordinary or exceptional: Megerditchian v Kumond Homes Pty Ltd [2014] NSWCATAP 120.
It is also necessary to consider not only whether there are special circumstances but also whether those circumstances warrant an award of costs: Fitzpatrick Investments Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCATAD 103 at [21].
Since s 60(2) commences with the words "The Tribunal may award costs ...", it is clear the Tribunal has a discretion which must be exercised (BPU v NSW Trustee & Guardian [2016] NSWCATAP 87 at [9]) and that discretion must be exercised judicially (eMove Pty Ltd v Dickinson [2015] NSWCATAP 94 at [48]), and not either arbitrarily or capriciously (Oshlack v Richmond River Council [1998] HCA 11 at [22]).
The primary submission for the applicant was that the time taken to finalise the application was neither party's fault and that was not disputed.
It was also suggested that the applicant's case against the respondents was overwhelming and that they should have accepted the termination notice. Reference was also made to a 17 November 2022 letter from the applicant's solicitors to the respondents (MFI 11), sent while the first hearing was part heard, which was said to have sought to resolve the proceedings in a way that was not disadvantageous to the respondents. Reliance was placed on the fact that the operator has a statutory obligation to its other residents to commence these proceedings, based on their complaints.
For the respondents, it was submitted that there had been three hearings, that the applicants had already had to pay for the initial hearing and the appeal and would now have to pay their costs of the re-hearing, with the result that if they were ordered to pay the applicant's costs, they would have to bear costs four times. It was noted that allegations were not pressed and there were said to be de minimis allegations. If the respondents were successful, it was contended they should be awarded costs but that, if they were unsuccessful, costs should not follow the event because it was not wrong for the respondents to defend grave allegations, which they had the right to test.
There was no order for costs made in the previous hearing and, other than an order against the respondent for costs thrown away, no order for costs was made in relation to the appeal. Against that background, it is difficult to find there are special circumstances when the only addition to the proceedings has been a second hearing, made necessary through no fault of either party. If the 17 November 2022 letter from the applicant's solicitors to the respondents (MFI 11) did not result in an order for costs in relation to the first hearing, it is difficult to see why the position should be any different now.
Having considered each of the matters set out in s 60(3), the submissions of the parties, and the history of these proceedings, the Tribunal is not satisfied there are special circumstances warranting an order for costs. Accordingly, the Tribunal considers each party should bear their own costs of this second hearing, being costs incurred since the finalisation of the appeal by orders that were made on 7 June 2023.

Orders

For the reasons set out above, the following orders are made: 1. There was a site agreement between the applicant and the respondents took effect from 13 September 2021. 2. That site agreement is terminated immediately, and the respondents are to give possession of the site covered by that agreement to the applicant on 16 January 2024. 3. The order for possession is suspended until 15 April 2024. 4. Each party is to bear their own costs of these proceedings, being the remitted hearing following an appeal which was allowed on 7 June 2023.

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: 13 August 2024

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Judgment (24 paragraphs)

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Legislation Cited (2)

Cases Cited (15)