Molloy v Stewards' Foundation of Christian Brethren - [2022] NSWCATCD 159 - NSWCATCD 2022 case summary — Zoe

NSWNSWCATCD

Molloy v Stewards' Foundation of Christian Brethren

[2022] NSWCATCD 159

NCAT Consumer and Commercial|2022-06-24|Before: Blake AM

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At a glance

Source facts

Court

NCAT Consumer and Commercial

Decision date

2022-06-24

Before

Blake AM

Source

Original judgment source is linked above.

Judgment (25 paragraphs)

[1]

Introduction

The alleged breach of s 66(2)(e) of the RV Act by the respondent is set out by the applicant in the following terms in the applicant's case summary: "Harassment and bullying 23. The Applicant has complained to the Respondent since at least November 2018 of the constant harassment, noise, abuse she has suffered from her immediate neighbours. … 31 The Applicant submits that the Respondent, as the operator of the Village, has breached section 66(2) (a), (b) and (e) as the Respondent has not taken steps to protect the Applicants quiet enjoyment of their premises and used "his or her best endeavours to ensure that each resident lives in an environment free from harassment and intimidation"."
The applicant's complaints are about two other residents of the village who reside in units 8 and 6. I will refer to these residents as person A and person B respectively.
The retirement villages application so far as the alleged breach of s 66(2)(e) of the RV Act by the respondent has been brought under each of s 66(3) and 122(1) of the RV Act.
Neither of the parties in their written or oral submissions raised the issue of whether the proceedings so far as the alleged breach of s 66(2)(e) of the RV Act by the respondent were commenced within the prescribed period, and if not time for their commencement should be extended. As the applicant was not legally represented, I have proceeded on the basis that the applicant has to the extent necessary made an application to extend time for the commencement of the proceedings so far as the alleged breach of s 66(2)(e) of the RV Act by the respondent, and dispensed with the requirement under r 8 of the NCAT Rules that the application be in writing.
Before considering this issue, it is necessary to set out the evidence of the parties. In setting out the evidence of the parties, I have focussed on the documents to which each the applicant and the respondent drew attention in their written and oral submissions.

[2]

The evidence of the applicant

Rule 5 of the village rules relevantly provides: "5. Noise 1) As with any other residential complex, a level of noise within the village is to be expected. However, you, your visitors or guests, must not make any noise likely to unreasonably interfere with the quiet enjoyment of others within the village. This rule applies whether you are inside your premises or on the common areas."
On 13 November 2018, the applicant sent a letter to Mr Adams in which she complained that person A had breached the village rules since she moved into the village (the 13 November 2018 letter).
On 13 November 2018, Ms Kennedy sent an email to Mr Adams (the 13 November 2018 email) in which she relevantly stated: "It has now been a month since the meeting to attempt to resolve and address the issues of noise that have been creating a great deal of distress to your resident, Mrs Myrtle Molloy. I spoke to Myrtle late yesterday and she reports that she has not heard from you at all since we met, nor seen any steps taken regarding the actions you had agreed to at the meeting. Could you please advise me or ideally Myrtle directly, as she continues to be impacted both by the noise and by the lack of interest from management in taking any action."
On 5 February 2019, Ms Padmasena sent a letter to Mr Adams (the 5 February 2019 letter), which relevantly provided: "We are instructed by Mrs Molloy that you have previously failed to take reasonable steps to resolve her noise complaint in a timely and respectful manner. We refer to our two meetings on 4 September 2018 and 16 October 2018 at the village. The purpose of these meetings was to discuss the issues raised by Mrs Molloy and to provide you an opportunity to understand those issues raised and to resolve those matters amicably between parties to avoid any escalation to the Tribunal. During these meetings you agreed to the following actions: 1. To speak to the other resident about the concerns raised. 2. To look at options to minimise fan noise 3. To inspect pipes - options for insulation from bathroom roof to piping into Mrs Molloys bathroom and make it more sound proof 4. To investigate a more efficient toilet flush system that could minimise noise …"
On 4 March 2019, Owen Hodge (OH), the respondent's then lawyers, sent a letter to Ms Padmasena in response to the 5 February 2019 letter (the 4 March 2019 letter), which relevantly provided: "Our client has conducted a thorough investigation of the complaints made by your client. In relation to the specific points raised in your letter we are instructed to reply as follows: 1. Our client has spoken to other residents. It has concluded that much of the complaint made by Mrs Molloy are about issues she has with other residents. This is a personality matter and not one for NCAT to resolve. 2. An inspection has been made of the fan. The report from that Inspection is that there are no faults or unusual noise from the fan or its operations. On that basis no noise insulation is required. 3. The toilet was replaced in 2011 when the unit was refurbished and is considered satisfactory. 4. We are instructed that Mrs Molloy has complained directly to other adjoining properties about the noise being made by them during the day while working and gardening in their backyards. …"
On 11 September 2019, Ms Padmasena sent a letter to the applicant (the 11 September 2019 letter), which relevantly provided: " … We have reviewed the information and it is our view, that the village manager failed to exercise his responsibility to resolve the issue fully by taking reasonable steps as he agreed at the mediation on 1 May 2019. We understand there were various undertakings by the village manager. As per your instructions we are going to write to the legal representative of the village manager seeking a progress report on the actions on those undertakings following the mediation. …"
On 16 September 2019, Ms Padmasena sent a letter to OH (the 16 September 2019 letter), which relevantly provided: " … We refer to the above mediation on 1 May 2019 between Mrs Myrtle Molloy and Mr Phillip Adams, the village general manager. We understand you represented Mr Adams at this mediation. We are instructed to follow up the progress of the following actions that Mr Adams agreed to at the end of the mediation. 1. Mr Adams to approach resident in Unit 6 [name omitted] to investigate installation of limiter or suppressor in her toilet cistern. 2. Mr Adams propose to resident in Unit 6 to install carpet to be paid by the village at no costs to the residents. 3. Mr Adams to make available [name omitted] village Rules translated into Chinese or appropriate language for the resident in Unit 6, [name omitted]. 4. Mr Adams to investigate lagging of the down pipe that runs from Unit 6 to Mrs Molloy's bathroom. 5. Mr Adams to support the initiation of the [name omitted] Village Residents Committee We understand that the [name omitted] Village residents have initiated themselves the residents' committee and have had two meetings to date. We are instructed that Mrs Molloy has had no correspondence in relation to other undertakings. The Interruption to Mrs Molloy's reasonable peace and comfort is continuing and it appears that Mr Adams has failed to honor (sic) his undertakings as well as fulfil his obligations under the Retirement Villages Act 1999 (NSW) as the operator of the [name omitted] Village. …"
On 27 September 2019, OH sent a letter to SRS (the 27 September 2019 letter), which relevantly provided: " … We have consulted with our client and are instructed to respond as follows: 1. Our client's representative Mr Adams has spoken to the resident in Unit 6 about the toilet. She will not co-operate in allowing any work to be done on the toilet. The village handyman and plumber have both reported that the toilet is functioning correctly and is not making excessive noise. The extracting fan has also been checked and found to be working normally. 2. Our client has offered to have carpet laid in unit 6 at its own expense. The resident is not willing to agree to this offer. She has indicated that her health is adversely affected by dust and carpet is not suitable for her residence. 3. We are instructed that the village rules have been translated into Mandarin and provided to the resident in Unit 6. This was reported to the resident's committee meeting on 20 August 2019. Mrs Molloy attended that meeting. At that meeting the 2 disputing residents were encouraged to speak to each other in an attempt to resolve their differences. 4. Mr Adams has taken advice from the village plumber that the location of the pipe in box construction is the normal approach to this issue and not to insulate the water pipes. 5. This has been done and 2 meetings have been held by the committee and attended by Mr Adams and additional meetings have been held by the executive. We are instructed that Mrs Molloy did not raise any of these issues at either of those meetings. The conclusion of the mediation was what the mediator described in his written report as "an understanding". Your reference to "undertakings" being given by Mr Adams is false. Those understandings included: to have the toilet looked at by a licenced plumber, the establishment of a residents committee, to review the village rules, and to send a copy of the village rules to the resident of Unit 6 in Mandarin. Mr Adams on behalf of our client has attended to these matters and complied with the understandings. …"
On 25 October 2019, Ms Padmasena sent a letter to the applicant, which relevantly provided: " … We confirm following our advice and assistance, there was a mediation between you and the village manager on 1 May 2019 with Office of Fair Trading. Our social worker in attendance at this mediation to support you. We are pleased that the village manager and his legal representative came to an understanding of various undertakings. We will assist you to follow up whether the operator fulfil their obligations. According to our current engagement, we will close your file until further assessment of our advice and assistance. …"
On 6 October 2020, officers of the NSW Police Force attended the village following an argument earlier that day between the applicant and person A regarding the activation of smoke alarms, and completed an incident report (the 6 October 2020 police report).
On 10 November 2020, officers of the NSW Police Force attended the village following an argument earlier that day between the applicant and person B, and completed an incident report.
On 10 July 2021, the applicant sent a letter to Mr Adams in which she complained that he had given a copy of the proposed budget of the village to person A for delivery to herself in circumstances where there was a history of person A removing plants from here garden area.
On 3 September 2021, the applicant sent an email to Mr Weldon and another representative of the respondent person named Peter, in which she relevantly stated: "Confirming my conversation with Phil on 8/08/21 and 20/08/21, and Peter 26/08/21. The reason for my call was to request a transfer to unit 15, my request to relocate to unit 14 prior to the unit going Strata was ignored. My thoughts then and now are as advised and encouraged by Seniors Rights services after failed lengthy attempts by them at mediation with Phillip Adams over the constant deprivation of sleep, due to noise issues with the resident above. To me, to be removed from the now deliberate noise endured by day and night and relocated to unit 15 will be the most productive solution as the now advised ultimate solution could be very lengthy and expensive. The issues have previously culminated in adjoining neighbours (external to the village) calling the police as did I, supported by another [name omitted] resident. The harassment from the resident above my unit and the self-appointed village manager opposite her, were angry, appalling and undeserved and reported on several occasions to Phillip Adams. Phillip's response was a damning, abusive and bullying written response initially, adding to my distress and against the village complaints procedures and village rules which are in my contract with Stewards Foundation. …"
On 29 October 2021, Mr Weldon sent a letter to the applicant, in which in response to her request to transfer to unit 15 he offered her the option of the right to occupy unit 15 on a new loan/licence arrangement provided she paid for any required repairs and that she paid for any legal costs incurred by her in seeking independent legal advice with respect to the new contract, or the right to purchase unit for a price in excess of $507,000.00 on the basis that she would no longer be part of the village but the owner of a lot in the strata scheme (the 29 October 2021 letter).
On 26 November 2021, the applicant sent a letter to Mr Weldon (the 26 November 2021 letter), in which she declined the offers in the 29 October 2021 letter, suggested that she have the right to occupy unit 15 on the basis that the respondent bring it up to an acceptable standard of repair and refurbishment, and relevantly stated: " … The reasons are that my life in the village has enabled me to make new friends and, also a couple of enemies and it is the fact that I am constantly subjected to abusive outbursts and verbally criticized often as I walk out of Unit 3 to attend to other elements of my life both inside and outside of the village. Despite having brought this matter to Management's attention on numerous occasions it continues to happen. We are all aware that on one such occasion this abuse was independently reported to the local Police who attended the village. I, along with each and every other village resident am entitled to live in the village and enjoy "quiet enjoyment". This entitlement has not been part of my village experience. Previously had sought, unsuccessfully, to relocate into another Unit within the Village because of exactly the same issue. It is my understanding that resolving this issue is a village management matter and there are provisions under the Retirement Villages Act, 1999 to facilitate this process. To date, no such action has taken place which has left me exposed to this continuing conduct and abusive outbursts in my day-to-day life. … My health has suffered measurably as a result of the harassment which haunts my days living in Unit 3. …"
On 2 December 2021, Mr Weldon sent a letter to the applicant (the 2 December 2021 letter), which relevantly provided: " … I'm sorry that our offer was not acceptable to you. We thought it was reasonable and believe that your characterisation of it as a "further penalty" is unfair. After due consideration, Stewards does not wish to accept your counter proposal. We will now proceed to sell unit 15. …. It's a matter of regret that there have been some relationship difficulties with certain people at the Village. When I met with residents individually during my recent visit, most indicated to me that there was some disharmony between a few residents. I received complaints by and against certain people. Your letter seems to imply rnatters have been brought to management's attention, but that the problem has continued. When you complained about the unkind words about you uttered by the occupant of unit 8 on or about 8 November, you advised that the last unpleasant interaction was 13 months earlier in October 2020. I believe that it is a little unfair that your letter appears to give the impression that Stewards has done nothing about your concerns. Your complaints have been received and discussed with you in length. I am advised that historically your concerns have been raised with the residents concerned, When you made that recent complaint about the behaviour of the occupant of unit 8, I promptly rang her to raise your allegation, however there was no answer. All I could do was to leave a message asking her to contact me. As you know, when I related this to you, you advised that she was in hospital and you sympathetically suggested, in view of her health condition, that nothing further needed to be said by Stewards. You agreed that I need take no further action on this occasion. … You mentioned your entitlement to "quiet enjoyment". Quiet enjoyment is a legal term that doesn't relate to the quality of relationships enjoyed with fellow residents. It relates to your right to possess your property and to enjoy it for all its usual purposes, without interference from the owner (in this case, Stewards). No one, including Stewards is preventing you from possessing your unit or being able to enjoy your unit for all its usual purposes. At no stage have you or anyone else blamed Stewards for the relationship difficulties being experienced at the Village. At the end of the day, the operator of a retirement village should do all in its power to stamp out bad behaviour and try to encourage good relations, but it is difficult for any operator to ensure that people live in harmony with each other. It is our fervent wish that the differences between the few residents at odds with each other can be resolved or overlooked so that [name omitted] can be marked by a spirit of harmony. …"
On 23 December 2021, Ms Kennedy sent a letter to Mr Weldon (the 23 December 2021 letter), which relevantly provided: "… … After learning more about her situation, I trust you are now more aware of the serious nature of the ongoing abuse and harassment that Myrtle has experienced and the impact it has had on her wellbeing for several years. Myrtle had anticipated that Stewards Foundation would take her matter seriously, however she has felt let down by the organisation repeatedly … As we noted, her situation is not a case of neighbour relationships having broken down, as you have characterised it. Rather it has been targeted, longstanding abuse from two neighbours towards Myrtle. Police have been called twice and they, as well as other residents, are fully aware of the perpetrators. …"
On 12 February 2022, Vanessa Allen (Ms Allen), an Accredited Mental Health Social Worker, Counsellor and Psychotherapist and the Principal of Evolving Minds Counselling, wrote a report addressed to "To Whom it May Concern" (the Allen report), in which she relevantly states: "Myrtle was referred for management of anxiety and depression on 10 August 2020, as the direct result of her living arrangements. During our sessions, Myrtle spoke of feeling frightened by residents in the aged care facility in which she lives and of this negatively impacting her mood. She experiences nightmares, flashback and was exhibiting signs of post-traumatic stress disorder. Myrtle also spoke of difficulty sleeping due to rumination and to date, continues to be worried about her safety. She is frightened to leave her unit and spoke of this continuing to impacting her quality of life, On two separate occasions, police have been called by other residents who are worried for Myrtle's well-being. While I do continue to support Myrtle, she unfortunately, has little control over the behaviour of her neighbours. While we did speak of transfer, Myrtle has attempted to transfer to other vacant units in the village however, this has not been welcomed by the Village Management, despite these properties remaining vacant after some six months or so. Given Myrtle continues to feel unsafe, I feel it imperative some resolution be offered so that Myrtle's well-being is no longer compromised."
On 26 May 2022, the officers of the NSW Police Force attended the village following an argument earlier that day between the applicant and person A which was precipitated by the applicant taking photographs and included person A grabbing the applicant's left wrist, and completed an incident report (the 26 May 2022 police report). This report records that there had been a number of disagreements between the applicant and person A over the past eight years. Person A stated to the officers that she and the applicant do not like each other and that the applicant is continually harassing other residents including by taking photographs of them. The NSW Police Force decided to take no action.

[3]

The evidence of the respondent

The evidence of the respondent consisted of: 1. the 27 September 2019 letter; 2. the respondent's case summary which relevantly includes: 1. the following information: " … the Respondent notes that that there are a number of residents (who wish to remain unnamed) that have also alleged bullying and harassment by the Applicant. The resident of Unit 6 has, as a result of the Applicant's behaviour, has effectively vacated her unit due to the emotional stress that has been suffered by her. The Respondent continues to use its best endeavours to mediate this situation and preserve quiet enjoyment for all residents. The Applicant has contacted the police on three (3) occasions with respect to disputes with a number of other residents and those residents are being greatly affected by the Applicant's behaviour. In particular, four (4) residents have made written complaints …" 1. the following statement of a resident referred to as "Resident 1" (the Resident 1 statement): "The majority of us are decent people, just wanting to enjoy life here. The situation has become extremely stressful, affecting our health (two of us recently prescribed blood pressure meds for the first time) and having to walk around on eggshells/unable to put a foot wrong. Obviously, something similar happened at Myrtle's previous complex - so much so, that those inhabitants celebrated with a party when she moved! You should be aware, too, that this woman has caused Phil (representative of the Operator) no amount of grief and he's had to remain calm in the face of it all which wouldn't have been easy for him. Myrtle will complain about everything and everyone. She can't continue with her abuse of tradies. Eventually, they'll refuse to work on our complex altogether. Her unpredictable/controlling behaviour towards them is an embarrassment for all of us. And it's so unnecessary. She has a strong desire to control (and actually is controlling) our communal home and there's no doubt that she "gets a kick" from the disharmony that she is causing to at least half of the current residents. What will happen when the four strata occupants (to be) move in? They will need to stand up to her. Please do something about this awful situation which should not be allowed to continue." 1. the following statement of a resident referred to as "Resident 2" (the Resident 2 statement): "In the past nearly four years, she (Myrtle) has made discriminatory retaliation and complaints against me, which has caused serious interference in my life! Until now, she has not ended her unreasonable trouble and is still complaining. Since Myrtle came to our village, more than 30 years of harmony and tranquillity has been lost, and it is worth pointing out that every conflict occurs with her! I hope you are able to resolve the problem." 1. the following statement of a resident referred to as "Resident 3" (the Resident 3 statement): "It seems that Mrs Molloy's reputation followed her from her previous village. The behavioural problems of this person impacted [name omitted] almost immediately after she moved in which was several years before I came to live here 5½ years ago. So, obviously, some events I have witnessed and some not, with those being suffered by a few other residents and visitors. The easiest way is to list the main ones, very briefly and not in order: • Car parking on the property. Given use of [Unit 6 resident] carport for two years and then asked to vacate as it was needed by [Unit 6 resident]. Since that time, many years ago, she made life hell for [Unit 6 resident] the occupant of Unit 6 located immediately above Unit 3. [Unit 6 resident] has now vacated that unit and will be returning to China. • [Unit 6 resident] was told when she could/couldn't vacuum, shower, use the toilet, wash clothes, where she could hang clothes, and that she was too noisy preparing her (sole) meal twice daily. • Verbal abuse of several tradespeople. Our handyman of many years advised management that he would no longer do any work for her. • Tradies told off for parking or making "noise" in the vicinity of her unit (which becomes necessary as there is limited car parking). • A Woolworths driver told off for parking in the driveway outside her unit, so he could deliver groceries to my first floor Unit 7 (the main door to the upstairs units in that block is adjacent to Unit 3). He was very upset. Also told to me firsthand that she'd refused to be served by a Woolworths employee at the Engadine store because they had dark skin. • However, it's okay for her to regularly park in the driveway while she slowly offloads groceries. She could easily do this from her nearby car space. • Other residents forbidden to use the communal clothesline in the garden outside her unit, unless they firstly seek her approval. • Told Phil Adams he was a liar at a residents' meeting. • Constantly taking photos of residents and tradies with her phone. Some stalking, particularly at night, where she mutters under her breath. • Changing stories involving her behaviour, to make herself look good instead of owning the problem. • Called the police three times over minor disagreements here. Each time she was involved. • Her suspected interference with Unit 13's car, parked in the carport adjacent to Unit 3. When challenged by the owner, she said "prove it". • Spends her days sitting on her lounge peering down the driveway to see what's going on and intercepting visitors walking past. • She investigates anyone talking outside her unit, but she thinks nothing of raising her voice in the vicinity of other units. • Can't cope with anyone picking flowers (which they've been given permission to do) but insists that the gardener decimate the came/ha bush outside her spare bedroom at the wrong time every year when it's budding and a few weeks off flowering." 1. the following statement of person A (the person A statement): "[name and address omitted] After living in perfect peace and harmony for 9 years, a new neighbour (Myrtle Molloy) arrived and she decided she wanted everything her way and still has this attitude today, therefore a battle of wills is still in progress and my health is suffering from it. Every time that I visit my geriatrician he asks about the situation with Myrtle. After two weeks living here, she was on the warpath and hasn't stopped. She has done many things: • Questioning visitors about parking and if they had relatives living here; • Arguments over the garden and particularly me picking flowers and takes photos which therefore result in the police being called (her favourite pastime) • Following me around from window to window to check what I was doing (picking flowers maybe?) • Was willing to share clothesline with new neighbour if they if said neighbour rang her first!"

[4]

Consideration and determination

I am satisfied that the applicant became entitled: 1. under s 66(3) of the RV Act to make the retirement villages application so far as the alleged breach of s 66(2)(e) of the RV Act by the respondent when she formed the opinion that the respondent had contravened that provision; 2. under s 122(1) of the RV Act to make the retirement villages application so far as the alleged breach of s 66(2)(e) of the RV Act by the respondent on the date on which the dispute actually arose. The reasoning in Bavin at [47]-[48] as to the application of r 23(3)(b) of the NCAT Rules to s 156(1) of the RLLC Act is equally applicable to its application to s 122(1) of the RV Act.
As expressed in the 5 February 2019 letter, the 11 September 2019 letter and the 16 September 2019 letter by Ms Padmasena on her behalf, the applicant formed the opinion that the respondent had contravened s 66(2)(e) of the RV Act.
Further, as expressed in the correspondence between the applicant and SRS on her behalf and the respondent up to the 23 December 2021 letter, there has been a dispute between the applicant and the respondent as to whether the respondent has complied with its obligation in s 66(2)(e) of the RV Act.
I am satisfied that the 26 May 2022 police report has no relevance to the issue of whether the proceedings so far as the alleged breach of s 66(2)(e) of the RV Act by the respondent were commenced within the prescribed period because there is no evidence that the applicant has complained to the respondent about this incident between herself and person A. It follows that I have not taken this incident into account on this issue.
I am satisfied that the applicant has failed to comply with r 23(3)(b) of the NCAT Rules by commencing the proceedings so far as the alleged breach of s 66(2)(e) of the RV Act within 28 days of becoming entitled to do so. It follows that the issue as to whether time for their commencement should be extended arises for determination.
In considering whether the discretion under s 41 of the NCAT Act should be exercised in favour of an extension of time for the commencement of the proceedings so far as the alleged breach of s 66(2)(e) of the RV Act by the respondent, I have had regard to the following matters: 1. the length of the delay is very substantial. The first complaints which were made in the 13 November 2018 letter and the 13 November 2018 email occurred approximately three years and five months before the commencement of the proceedings. The last complaint made on or about 8 November 2021 which is referred to in the 2 December 2021 letter occurred over five months before the commencement of the proceedings; 2. there is no explanation of the delay in circumstances where the applicant has been represented by SRS at least up to 23 December 2021 including by a solicitor of SRS at least up to 25 October 2019; 3. the applicant's case does not have substantial merit more than merely being fairly arguable for the reasons in [90] to [105] below; 4. there is no evidence that the respondent will suffer any prejudice if an extension of time is granted.
Taking into the matters in [87] above, I have decided to grant an extension of time for the following reasons: 1. the applicant is unrepresented and could not be expected to know of the time limits for the commencement of the proceedings; 2. the respondent is legally represented and has made no submission that the proceedings are incompetent by reason of having been commenced out of time; 3. in circumstances where there is no evidence that the Tribunal on 12 May 2022 drew attention to the possible incompetence of the proceedings and I did not do so at the hearings on 24 June 2022 and 24 August 2022 an extension of time will facilitate the just resolution of the real issues in dispute in the proceedings as required by s 36(1) and (2)(a) of the NCAT Act.
It follows that time for the commencement of the proceedings so far as the alleged breach of s 66(2)(e) of the RV Act by the respondent should be extended to 22 April 2022.

[7]

The applicable legal principles

Neither party addressed the proper interpretation of s 66(2)(e) of the RV Act.
The Tribunal has applied s 66(2)(e) of the RV Act: Tindall v Ridge Estate by Teman Pty Ltd; Ridge Estate by Teman Pty Ltd v Tindall [2021] NSWCATCD 36 (Tindall). The proper interpretation of s 66(2)(e) of the RV Act was not considered in this case.
In Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 at 64; [1984] HCA 64 (Hospital Products) Gibbs J explained the meaning of the expression "use best endeavours" in a contract as follows: "[A]n obligation to use 'best endeavours' does not require the person who undertakes the obligation to go beyond the bounds of reason; he is required to do all he reasonably can in the circumstances to achieve the contractual object, but no more".
In the same case Mason J at 91-92 referred to the extent of the obligation of best efforts (or endeavours) as "governed by what is reasonable in the circumstances". Dawson J at 143-144 noted that the obligation does not impose a duty upon a party to disregard his or her own interests.
In Foster v Hall [2012] NSWCA 122 at [33]-[34] Macfarlan JA (with Meagher JA at [50] and Tobias AJA at [51] agreeing) made the following observations of the meaning of the expression "best reasonable endeavours" in a contract: "THE REQUIREMENT TO USE "BEST REASONABLE ENDEAVOURS" [33] The addition of the word "best" to the expression "reasonable endeavours" raises the required standard to a level somewhat higher than that imposed by a simple "reasonable endeavours" obligation. However I do not consider that there is any significant difference, at least for present purposes, between the content of an obligation to use "best reasonable endeavours" and one to use "best endeavours". In Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; 156 CLR 41 Gibbs J explained the meaning of the latter expression as follows: "[A]n obligation to use 'best endeavours' does not require the person who undertakes the obligation to go beyond the bounds of reason; he is required to do all he reasonably can in the circumstances to achieve the contractual object, but no more" (at 64). In the same case Mason J referred to the extent of the obligation of best efforts (or endeavours) as "governed by what is reasonable in the circumstances" (at 91 - 2). Dawson J noted that the obligation does not impose a duty upon a party to disregard his or her own interests (at 143 - 4). [34] To those statements may be added the proposition that a party subject to the obligation is bound to take "steps which a prudent, determined and reasonable [party], acting in his own interests and desiring to achieve [the results specified in the contract] would take" (Hawkins v Pender Bros Pty Ltd [1990] 1 Qd R 135 at 151 quoting Buckley LJ in IBM United Kingdom Ltd v Rockware Glass Ltd [1980] FSR 335 at 343)."
I am satisfied that s 66(2)(e) of the RV Act should be interpreted in the same manner as the contractual obligation to use best endeavours as explained in Hospital Products at 64 (Gibbs J), 91-92 (Mason J), 143-144 (Dawson J), and Foster v Hall at [33]-[34] (Macfarlan JA). The scope of the obligation of the operator is to do all it reasonably can in the circumstances to achieve the statutory object of ensuring that each resident lives in an environment free from harassment and intimidation, but no more. This means taking steps which a prudent, determined and reasonable operator acting in its own interests and desiring to achieve the statutory object would take.
In Tindall the applicants complained that they were being bullied by other residents. They said the bullying took the form of vexatious complaints to management, a physical injury to the ear of one of them when a car horn was honked in close proximity to him, stalking, nuisance phone calls, poison pen letters, junk mail placed in their letterbox, cyberstalking on their facebook pages, verbal insults, property damage, contacting Police, and whistling outside their unit. The evidence of the operator was that it had investigated all but three of the complaints. The Tribunal, while finding that there was significant disharmony between the applicants and other residents, found that there was no breach of s 66(2)(e) of the RV Act except in relation to the three uninvestigated complaints.

[10]

Consideration and determination

I am not satisfied that the applicant has established that she has been harassed by her neighbours, and has been intimidated by one or more of them, for the following reasons: 1. while the applicant and her representatives have asserted ongoing abuse and harassment by her neighbours, the actual conduct is largely undescribed; 2. this evidence of the applicant and the respondent discloses significant disharmony between the applicant and her neighbours, but does not demonstrate harassment and intimidation by them. In particular; the 6 October 2020 police report discloses that there is long standing mutual animosity between the applicant and person A who each blame the other; 3. in the absence of any cross-examination challenging their evidence, I accept the evidence of the residents in the Resident 1 statement, the Resident 2 statement and the Resident 3 statement, and person A in the person A statement.
In view of this finding, I am not satisfied that the respondent has contravened s 66(2)(e) of the RV Act.
If, contrary to my finding, it is later found that the applicant has been harassed by one or more of her neighbours, and has been intimidated by one or more of them, then I would not have been satisfied that the respondent had contravened s 66(2)(e) of the RV Act. I accept: 1. that the respondent as asserted in the 4 March 2019 letter investigated the complaints made in the 5 February 2019 letter; 2. that the respondent took the steps outlined in the 27 September 2019 letter in response to the concerns raised in the 16 September 2019 letter; 3. that Mr Weldon as asserted in the 2 December 2021 letter attempted to contact person A in response to the complaint of the applicant made on or about 8 November 2021, but did not follow up his inquiry in conformity with the wishes of the applicant.
Further, the applicant has not identified what steps the respondent should have taken other than her transfer to unit 15 on the conditions specified in the 26 November 2021 letter. I am not satisfied that the respondent should reasonably have taken this or any other step to attempt to resolve the disharmony between the applicant and other residents of the village.
105 It follows the proceedings should be dismissed so far as the alleged breach of s 66(2)(e) of the RV Act by the respondent.

[12]

Whether the respondent is liable to pay any compensation to the applicant for its breach of s 66(2)(e) of the RV Act

In view of my findings in [101] to [105] above, this issue does not arise for determination. However, in case I am later found to be wrong in finding that the respondent has not breached s 66(2)(e) of the RV Act, I have considered the issue of whether the respondent is liable to pay any compensation to the applicant for its breach of s 66(2)(e) of the RV Act.
Neither of the parties addressed the question of whether an order for compensation under s 66(3)(a) or s 128(1)(f) of the RV Act can include an amount for mental distress. Further, the applicant did not address why the quantum of compensation payable for her mental distress caused by the breach of s 66(2)(e) of the RV Act by the respondent should be $10,000.00.
The Appeal Panel has held that damages for loss of enjoyment in respect of residential tenancy premises can include damages for mental distress: Torpey v Stewart [2021] NSWCATAP 248 at [24]-[31]. There is no relevant difference between the obligation of a landlord under s 50(2) of the Residential Tenancies Act 2010 (NSW) not to interfere with the reasonable peace, comfort or privacy of the tenant and the obligation of a operator under s 66(2)(a) of the RV Act not to interfere, or cause or permit any interference, with the reasonable peace, comfort or privacy of a resident. Accordingly, I accept that compensation payable by an operator to a resident under s 66(3)(a) or s 128(1)(f) to the applicant for its breach of s 66(2)(a) of the RV Act can include damages for mental distress. In each case the landlord or the operator, as the case may be, can ensure that they do not breach the obligation.
However, I do not accept that compensation payable by an operator to a resident under s 66(3)(a) or s 128(1)(f) to the applicant for its breach of s 66(2)(e) of the RV Act can include damages for mental distress. Unlike the obligation in s 66(2)(a) of the RV Act, an operator cannot ensure an environment within a retirement village is free from harassment and intimidation.
I would have accepted the evidence of the applicant as to the impact of the environment at the village on her health as stated in the 26 November 2021 letter, and to Ms Allen as recorded in the Allen report. Further, I also would have held that the breach of s 66(2)(e) of the RV Act by the respondent had materially contributed to the mental distress of the applicant. However, In respect of the claim for order 2(b)(v), I would not have ordered the respondent to pay the applicant compensation any amount for mental distress.
I would also have refused to make orders 2(b)(i) to (iv) in favour of the applicant as I would not have been satisfied that the Tribunal has power to order that the respondent is liable to consent to the applicant's right of occupancy being transferred from unit 3 to unit 15.
It follows that, if I had found that the respondent had breached s 66(2)(e) of the RV Act, I would have refused to make any of orders 2(b)(i) to (v) in favour of the applicant.

[14]

Introduction

The alleged breaches of ss 60(3) and 112 of the RV Act by the respondent is set out by the applicant in the following terms in the applicant's case summary: "Lack of transparency of budget and variation in water services 14. The correspondence presented shows that the residents of the Village have continuously complained to the Respondent about: the lack of explanation and transparency of the Village budget expenditure items since at least 25 June 2019 … … 19. The Respondent is unilaterally varying the services by changing the method by which water usage is charged to residents by not distributing the water rates across all 15 units in the Village equally. The Respondent has not calculated the 6 strata title units, including the 2 owned by the Respondent, that are part of the Village, to share the water usage or rates. 20. This change to the method of how water is delivered and charged to the residents of the Village and the Applicant particularly, constitutes a variation in the service, being: a. an increase in a service or facility (s 60(10)(c) of the RV Act); b. any other change in a service or facility (s 60( 10)(d) of the RV Act); or c. the provision of a new service or facility (s 60(10)(e) of the RV Act), 21. No explanation has ever been provided by the Respondent in relation to the charge for water usage in the budgets. No explanation has been given for the change in the allocation of cost, the actual or anticipated costs, the metering of water, copies of invoices or payments for water or any reason why the allocation was changed from all 15 premises in the Village to only 9. 22. There was no action taken by the Respondent to seek the residents' consent to the Village Budgets for those years or any part of it even though the increase in the recurrent charges for the year ended 30 June 2022 showed increases of 3.45% and 1,41% depending on the size of the premises, which were above CPI for that time."
The retirement villages application: 1. so far as the alleged breach of s 60(3) of the RV Act by the respondent has been brought under s 62(1) of the RV Act; 2. so far as the alleged lack of transparency of budget appears to be based on the alleged breach of s 112 of the RV Act by the respondent and to have been brought under s 122(1) of the RV Act.
Neither of the parties raised this issue in their written or oral submissions. As the applicant was not legally represented, I have proceeded on the basis that the applicant has to the extent necessary made an application to extend time for the commencement of the proceedings so far as the alleged breach of ss 60(3) and 112 of the RV Act by the respondent, and dispensed with the requirement under r 8 of the NCAT Rules that the application be in writing.
Before considering this issue, it is necessary to set out the evidence of the parties comprising some uncontroversial matters, the relevant correspondence, and the financial records of the respondent. All this material is contained within the evidence of the applicant. The evidence of the respondent was limited to three documents within this material. In setting out this material, I have focussed on the documents to which each the applicant and the respondent drew attention in their written and oral submissions.

[16]

The relevant correspondence

On 11 August 2015, Mr Adams sent a letter to the residents of the village, which relevantly provided: "The Foundation is arranging to register the village under a Strata Title arrangement. … Once the application is approved by Council any new unit sales will be sold on a Strata Title basis. This will not affect the present contractual arrangements of any resident. Your conditions will not change. Your monthly fees will remain on the same basis as they are now with yearly reviews in July. …"
On 31 October 2019, Patricia Barbe (Ms Barbe), the President of the resident committee, sent a letter to Mr Worley (the 31 October 2019 letter), which relevantly provided: "I am the President of the [name omitted] Residents Committee. I am writing on behalf of the residents of [name omitted] to raise a number of issues for residents that to date have not had any resolution and to seek clarification as to the pathway to escalate issues and complaints about the Retirement Village Manager and its management. … Issues include but are not limited to: … • A lack of information and transparency about the move of units to strata title and the involved in this process. … We have attempted to resolve these issues with the village manager many times. However, we have lost faith in his willingness or interest in our concerns. Therefore, we respectfully request a meeting with you to discuss these issues in an attempt to clarify our rights as residents and to clarify the role of the RV Manager and his responsibilities. We look forward to hearing from you."
On 11 November 2019, Mr Worley sent a letter to Ms Barbe, which relevantly provided: "Thank you for your letter dated 31/10/2019 which I received today. I am concerned about the issues you raised in your letter and keen to resolve them. I would be delighted to meet with you and other representatives of the Resident Committee to establish a good line of communication to answer these and any future questions you may have. …"
On 4 December 2019, Mr Worley sent a letter to Ms Barbe with the subject "Notes on our meeting of 28 November, 2019", which relevantly provided: "Thank you for the meeting the other day. It was a delight to meet you all. I would like to thank you for the courtesy of the meeting and the way it was conducted. I wanted to write to you to let you know what I agreed to do. Also, if there is anything I have missed or mis-understood or have not explained properly, please let me know. I have addressed the matters in your letter and have added the other actions I agreed to take as a result of the meeting. … Strata … General Phil and I are meeting with the strata company in the next week to go through those costs in detail. I will arrange to meet with you and discuss this with you as soon as possible. Stewards Foundation commitment remains that we will not cause an increase in the current fees as a result of this step. Costs to introduce the Strata The cost of additional items required for Strata is being born by Stewards Foundation. For example, the installation of water meters and refurbishment of units were borne by Stewards Foundation. …"
On 13 January 2020, Ms Barbe sent a letter to Mr Worley, which relevantly provided: "On behalf of the residents committee, I would like to thank you for the recent meeting at our village. We appreciate your prompt response in writing regarding some of the issues raised. It means a lot to us because our committee feels that the senior management has finally taken our concerns seriously. Most of us have lived in this village for many years and this is the first we have had any real response to our ongoing requests at all. There are two points on which we are seeking further clarification: … 2. To assist village residents to build trust in the management going forward, we would like to request a breakdown of actual expenses as detailed over the last five financial reports. The budget papers were presented at the annual meeting; however, there has been little opportunity to ask questions or to query some of the contents. There continues to be considerable concern within the village about a lack of transparency regarding expenses, so your assistance in providing this breakdown would be appreciated. We look forward to continuing to build a more productive relationship between management and residents."
On 5 February 2020, Mr Worley sent a letter to Ms Barbe with the subject "Letter dated 13 January, 2020", which relevantly provided: "Thank you for your letter dated 13 January, 2020 which I received last week. I am about to go on leave and I don't have the complete answers but wanted to acknowledge that we have it and are working on your requests. I trust too that you are seeing progress on the issues you raised in November. Stewards Foundation always acts with integrity, transparency and kindness. …
On 4 May 2020, Ms Barbe sent a letter to Mr Worley, which relevantly provided: "We had been assured in your last letter that you would respond fully on your return from holiday in February 2020. We had also been assured that we would see a more productive relationship between management and residents. This is not the case. We remain frustrated and demoralised by the Stewards Foundation's inaction and poor management of [name omitted]. 1. We have not received any follow up correspondence from you as promised, specifically about outstanding queries from our initial correspondence with you: … • To assist village residents to build trust in the management going forward, we would like to request a breakdown of actual expenses as detailed over the last five financial reports. • The budget papers were presented at the annual meeting; however, there has been little opportunity to ask questions or to query some of the contents. As per our last letter, there is considerable concern about a lack of transparency regarding experiences. We respectfully invite you, in the interests of promoting transparency and good will, to attend the next annual management meeting to allow for an opportunity for residents to ask questions about the budget and expenses directly to you. … Alex, I ask that you consider the impact of these issues on the morale within the village, which is low. These are difficult times for residents. We ask that you demonstrate that you take the care and safety of residents seriously and that you take on these concerns as a matter of urgency in collaboration with the residents committee."
On 20 May 2020, Mr Adams sent a letter to Ms Barbe, which relevantly provided: "Thankyöu for your letter dated 4 May 2020 received by us on 19 May 2021). Alex Worley has asked me to respond to your questions as am the Retirement Village Manager. Stewards Foundation always act with the utmost integrity, transparency, and kindness. In respect to point 1 of your letter, a detailed explanation of the expenses is provided below. Mostly the items are self-explanatory (e.g. residents' functions), however, some items are worthy of more explanation and comment as below: … 9. Water rates - water used in the common areas and for every unit in the village …"
On 4 June 2020, Josephine Allon, the Vice President of the resident committee, sent a letter to Mr Worley, which relevantly provided: "Please find attached a copy of the letter the residents committee received on 20 May 2020 from Philip Adams, in response to our letter to you dated 4 May 2020. We were extremely disappointed not to receive a response directly from you. Instead you asked the Retirement Village manager to write to us. This in our view was highly inappropriate as we had raised several serious management issues with you in our correspondence Mr Adams letter serves only to highlight our previous concerns about his management behaviour. … • There is no clear explanation about other budget issues. … Philip has been invited to attend a meeting with the committee, on 11 June 2020 at 10am at the Village In light of the ongoing and escalating issues, the committee would like you to also attend. If you are unable to make this time, we would prefer to reschedule to a time convenient to you. Can you please confirm?"
Between 15 February 2021 and 19 May 2021, there was correspondence between Mr Worley and OH, on the one hand, and Mr Smith, on the other hand, in which Mr Smith requested and OH provided documents relating to the village requested by Mr Smith. It is unnecessary to set out this correspondence.
Between 8 June 2021 and 18 November 2021, there was correspondence between Mr Adams and Mr Weldon, on the one hand, and Mr Smith, on the other hand, attaching and commenting on the financial records for the village. Except as set out at [133] below it is unnecessary to set out this correspondence.
On 21 October 2021, Mr Weldon sent an email to Mr Smith, which relevantly provided: "… I attach the quarterly report for the June quarter. We have prepared a tentative document for the September quarter which will be finalised shortly. You will see that there is a revised annual budget for the year. Stewards is not concerned about operational deficits since, of course, it has historically met any deficits itself. It has sometimes forfeited or accepted a reduced Head Office Administration fee. (You will also see that for this financial year no Head Office Administration Fee is being sought). …"

[17]

The financial records for the village

I have found it difficult to obtain a complete understanding of the financial position of the village due to the provision of incomplete documents and an absence of information regarding the approval of budgets. This is not to be critical of the applicant as she was not legally represented. I have set out at [135] to [140] below the relevant information which I have been able to derive in the provided financial records for the village.
The actual income and expenditure and monthly contributions of the village were relevantly the following amounts in the following periods: 1. the 2016/2017 financial year: water rates - $1,126.00; monthly fee for a one bedroom unit - $263.00; monthly fee for a two bedroom unit - $332.00; 2. the 2017/2018 financial year: water rates - $1,321.98; monthly fee for a one bedroom unit - $275.00; monthly fee for a two bedroom unit - $340.00; 3. the 2018/2019 financial year: water rates - $1,980.16; monthly fee for a one bedroom unit - $285.00; monthly fee for a two bedroom unit - $350.00; 4. the 2019/2020 financial year: water rates - $3,132.42; monthly fee for a one bedroom unit - $290.00; monthly fee for a two bedroom unit - $355.00; 5. the 2020/2021 financial year: water rates - $5,585.23; monthly fee for a one bedroom unit - $290.00; monthly fee for a two bedroom unit - $355.00.
The proposed budget for the village for the 2020/2021 financial year as contained in the financial report for the village for the quarter ending 31 March 2020 to be applied from 1 July 2020 included the following information: water rates - $1,200.00; total expenditure - $44,420.00; monthly fee for a one bedroom unit - $290.00; monthly fee for a two bedroom unit - $355.00; total maintenance fees from three x one bedroom units and seven x two bedroom units - $44,520.00 (the 31 March 2020 village financial report).
The proposed budget for the village for the 2021/2022 financial year as contained in the financial report for the village for the quarter ending 31 March 2021 included the following information: water rates - $4,500.00; total expenditure - $41,660.00; monthly fee for a one bedroom unit - $300.00; monthly fee for a two bedroom unit - $360.00; total maintenance fees from two x one bedroom units and seven x two bedroom units - $37,440.00.
The proposed budget for the village for the 2021/2022 financial year as contained in the financial report for the village for the quarter ending 30 June 2021 to be applied from 1 January 2022 included the following information: water rates - $5,000.00; total expenditure - $39,800.00; monthly fee for a one bedroom unit - $300.00; monthly fee for a two bedroom unit - $360.00; total maintenance fees from two x one bedroom units, seven x two bedroom units and one x two bedroom units for three months - $38,505.00.
The proposed budget for the village for the 2021/2022 financial year as contained in the financial report for the village for the quarter ending 30 September 2021 to be applied from 1 January 2022 included the following information: water rates "(using new unit metres)" - $5,000.00; total expenditure - $39,800.00; monthly fee for a one bedroom unit - $300.00; monthly fee for a two bedroom unit - $360.00; total maintenance fees from 2.3 x one bedroom units and seven x two bedroom units - $38,520.00.
The approved budget for SP101039 for the 2021/2022 financial year does not include any amount for water rates in the administrative fund.

[18]

Consideration and determination

I am satisfied that the applicant became entitled: 1. under s 62(1) of the RV Act to make the retirement villages application so far as the alleged breach of s 60(3) of the RV Act when the respondent is alleged to have reduced or withdrawn, or permitted the reduction or withdrawal of, a service or facility relating to the provision of water to the village; 2. under s 122(1) of the RV Act to make the retirement villages application so far as the alleged breach of s 112 of the RV Act by the respondent on the date on which the dispute actually arose.
While the application has not asserted when the respondent had contravened s 60(3) of the RV Act, it appears from the proposed annual budget for the village for the 2020/2021 financial year in the 31 March 2020 village financial report that the alleged reduction or withdrawal of the water service or facility commenced on 1 July 2020.
Further, as expressed in the correspondence between the officers of the residents committee and officers of the respondent between 31 October 2019 and 4 June 2020, there has been a dispute between the applicant and the respondent as to whether the respondent has complied with its obligation in s 112 of the RV Act since at least 31 October 2019.
I am satisfied that the applicant has failed to comply with r 23(3)(b) of the NCAT Rules by commencing the proceedings so far as the alleged breaches of ss 60(3) and 112 of the RV Act by the respondent within 28 days of becoming entitled to do so. It follows that the issue as to whether time for their commencement should be extended arises for determination.
In considering whether the discretion under s 41 of the NCAT Act should be exercised in favour of an extension of time for the commencement of the proceedings so far as the alleged breaches of ss 60(3) and 112 of the RV Act by the respondent I have had regard to the following matters:
I have decided that time for the commencement of the proceedings so far as the alleged breaches of ss 60(3) and 112 of the RV Act by the respondent should not be extended under s 41 of the NCAT Act for the following reasons: 1. the length of the delay is very substantial. The first complaint about the lack of transparency of the budget of the village which was made in the 31 October 2019 letter occurred approximately two years and six months before the commencement of the proceedings. The alleged reduction or withdrawal of the water service or facility which commenced on 1 July 2020 occurred approximately one year and ten months before the commencement of the proceedings; 2. there is no explanation of the delay in circumstances where the residents committee has been represented by Mr Smith since at least February 2021; 3. the applicant's case is not fairly arguable for the reasons in [149] to [155] below; 4. there is no evidence that the respondent will suffer any prejudice if an extension of time is granted.
Taking into the matters in [146] above, I have decided to grant an extension of time for the same reasons as in [88] above.
It follows that time for the commencement of the proceedings so far as the alleged breaches of ss 60(3) and 112 of the RV Act by the respondent should be extended to 22 April 2022.

Parties

Applicant/Plaintiff:

Molloy

Respondent/Defendant:

Stewards' Foundation of Christian Brethren

Legislation Cited (8)

Retirement Villages Regulation 2017(NSW)

Stewards' Foundation of Christian Brethren Act 1989(NSW)

Civil and Administrative Tribunal Rules 2014(NSW)

Retirement Villages Act 1999(NSW)

Civil and Administrative Tribunal Act 2013(NSW)

Residential (Land Lease) Communities Act 2013(NSW)

Residential Tenancies Act 2010(NSW)

Strata Schemes Management Act 2015(NSW)

Cases Cited (12)

When an applicant becomes entitled to make an application

In Bavin v Parklea Operations Pty Ltd [2019] NSWCATAP 120 (Bavin) at [47]-[48] the Appeal Panel considered the proper construction of r 23(3)(b) of the NCAT Rules under s 156(1) of the Residential (Land Lease) Communities Act 2013 (NSW) (RLLC Act): "[47] As noted above, rule 23(3)(b) provides that an application must be made within 28 days from the day on which the applicant 'became entitled under the enabling legislation' to make the application. The appellants' entitlement to make their application in the Consumer and Commercial Division arose under s 156(1) of the RLLC Act, as this is the section that gave the appellants the right to bring their claim. That section, vests an operator or home owner with the right to bring an application to the Tribunal 'for determination of a dispute relating to a right or an obligation' under that Act. Section 85 of the RLLC Act sets out a right of a home owner to recover an amount paid under Part 7 of the Act that was paid under a mistake of fact or law. Section 77(3) sets out an obligation of the operator in regard to utility charges that are payable by the home owner (i.e. to charge a home owner no more for the supply of a utility to the home owner's premises than what the operator was charged by its retail supplier). [48] Accordingly, in this case and on the proper construction of rule 23(3)(b) of the NCAT Rules and s 156 of the RLLC Act, time began to run from the time the appellants were in dispute with the respondent in regard to the alleged overcharging and not from the time the respondent issued an electricity bill the appellants allege to exceed what the respondent was entitled to charge under s 77(3) of the RLLC Act. The fact that the dispute between the appellants and the respondent involved bills that had been issued and paid for over an extended period of time prior to the date on which the dispute actually arose is, in our view, not material to the question as to when time begins to run for the purposes of rule 23(3)(b). Had this been the case, Parliament would have included a time period in Schedule 3 of the RLLC Reg for bringing an application to the Tribunal under s 85 of that Act that involved a breach of s 77(3)."

Extensions of time under s 41 of the NCAT Act

In Jackson v NSW Land and Housing Corporation [2015] NSWCATAP 281 at [23]-[24] the Appeal Panel found that the following three factors identified in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22] were applicable to the consideration of an extension of time under s 41 of the NCAT Act for the commencement of proceedings in the Tribunal by bringing a general application: "[22] … (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; … (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (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 - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59]."