Moloney v Taylor

NCAT Consumer and Commercial|2015-11-26

Background

In proceedings determined in March 2015 between these parties the Tribunal found that the agreement between the parties was governed by the Holiday Parks (Long Term Casual Occupation) Act 2002. On 11 March 2015 the Tribunal made orders terminating the agreement and requiring that possession of the site be given to the Park Owner on 1 May 2015. The applicant alleges that the respondent has failed to comply with those orders. The respondent says that she has complied with the orders, but the van, annex and slab are fixtures and cannot be removed.

Application

The applicant seeks the following orders: 1. An order under s 32 of the Act that the site was abandoned by the respondent. 2. An order under s 34 (2)(a) of the Act authorising the removal, destruction or disposal of all goods left by the respondent on site 63. 3. An order under s 34 (2)(b) of the Act that the respondent pay the applicant's costs of and incidental to the removal, destruction or disposal of all goods left by the respondent upon site 63. 4. An order for the respondent to pay the ongoing site fees up to and including the date of removal, destruction or disposal of the goods left by the respondent on site 63, including late fees and alleged underpayments. 5. An order that the respondents pay the applicant's costs of these proceedings, and of the previous proceedings.

Applicant's evidence and submissions

The applicant relied upon his own evidence and a bundle of documents filed with the Tribunal. The applicant gave evidence that despite orders made by the Tribunal on 11 March 2015, terminating the site agreement and requiring possession of the site on 1 May 2015, vacant possession had not been given. The van, annex and various goods remained on the site. He did not know whether the respondent intended to return to the site. The applicant seeks orders to enable him to remove the goods at the respondent's cost ($19,412.80).
In addition the applicant seeks orders for payment of site fees, and for late fees. The applicant seeks to recover the difference between the site fees paid by the applicant, and that which he says was payable pursuant to the park rules.
The applicant also seeks the costs of these proceedings, and of previous proceedings between the parties.

Respondent's evidence and submissions

The respondent opposes the orders sought. In respect of the orders under ss 34 and 35, the respondent argues that the application is out of time, as s 36 requires that the application be brought within 28 days after the date the park owner gains possession of the site. The respondent submits that the Tribunal has no power to extend that time, or in the alternative says that the Tribunal should not extend time because the applicant has failed to mitigate his loss by bringing the proceedings in a timely manner. The applicant says that time has not commenced to run because he has not been given possession of the site.
The respondent also alleges that the dwelling is a fixed structure and cannot be moved.
In her submission filed with the Tribunal on 13 October 2015 the respondent states that she resided in the premises until 1 May 2015. She also says that she has complied with the Tribunal orders to give possession of the site to the respondent.
The respondent opposes the orders sought in relation to the additional site fees on the basis that she says she did not receive the Park rules. It was for this reason that she paid the amount she paid.
The respondent also opposes the cost order sought. She alleges that, as the solicitor for the park is also its manager, he has a conflict of interest. She alleges that the park owner has conducted the proceedings in a way which is not consistent with the Tribunal's guiding principle.

Findings and Decision

In respect of each of the orders sought 1. An order under s 32 of the Act that the site was abandoned by the respondent.
The Tribunal accepts the respondent's evidence that she abandoned the site on 1 May 2015. There is no evidence that she returned to the site after that date. She did not deliver vacant possession, because she did not remove the van annex or slab. The Tribunal does not accept that she was unable to do so, or that the van and annex are fixtures. At the hearing the respondent's advocate indicated that the respondent did not press these arguments. The Tribunal finds that the respondent abandoned the site on 1 May 2015.
If the applicant was not certain that possession of the site had been given to him, he could have executed a warrant for possession. At the hearing the applicant's lawyer said that as the sheriff would only remove the respondent, there was no point in doing so. However, if the applicant was not certain that the site had been abandoned, that course was open to him.

Time for bringing application

Sec 36 of the Act provides that an application under s 34 or 35 may not be made more than 28 days after the date on which the park owner gains possession of the site, whether as a result of the occupant delivering up vacant possession of the site to the park owner, the occupant abandoning the site or the park owner recovering possession of the site. As the Tribunal has found that the site was abandoned on 1 May 2015, the application ought to have been filed no later than 29 May 2015. It was not filed until 25 August 2015.
Sec 41 of the Civil and Administrative Tribunal Act 2013 provides as follows: 41 Extensions of time (1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired.
The matters which should be considered in determining whether to extend time were considered by the appeal panel in Jackson v NSW Land and Housing Corporation [2014] NSW CATAP 22 at [22]. In relation to the consideration of whether to grant an extension of time in which to bring an appeal, the appeal panel; said: (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 at 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (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].
The consideration in paragraph 2 is not relevant in this matter, but the other considerations do apply. The applicant's reason for not bringing the proceedings in time was that, in his view, because vacant possession had not been obtained, time had not begun to run. This argument revealed a misunderstanding as to the process which ought to have been adopted to obtain possession of the site.
To deny an extension of time would be to prevent the applicant from obtaining the orders to remove the abandoned goods, and to obtain an order for the cost of doing so. On the other hand, the prejudice to the respondent can be cured by preventing the applicant from recovering the site fees for the period of the delay. Accordingly the Tribunal is satisfied that it is appropriate to extend the time for the bringing of the application, but to deny the applicant an order for the site fees between 29 May 2015 and 25 August 2015. 1. An order under s 34 (2)(a) of the Act authorising the removal, destruction or disposal of all goods left by the respondent on site 63.
The Tribunal is satisfied that the respondent, having abandoned the site, has left on it items including the van, annex, concrete slabs, fridge, books and assorted other items. The Tribunal finds that the goods are abandoned goods and that it is appropriate to make the order sought. 1. An order under s 34 (2)(b) of the Act that the respondent pay the applicant's costs of and incidental to the removal, destruction or disposal of all goods left by the respondent upon site 63.
The applicant seeks the sum of $19412.80 as the cost of removing the van, annex and other goods. The respondent has provided no alternative quote, although she complains that she was prevented by the applicant from doing so. The Tribunal is satisfied that the respondent could have obtained a quote in the period between termination of the agreement and the date for possession. Accordingly, in the absence of any evidence to the contrary, the Tribunal allows the amount claimed. 1. (4) An order for the respondent to pay the ongoing site fees up to and including the date of removal, destruction or disposal of the goods left by the respondent on site 63
The applicant seeks an order for payment of site fees from 15/03/2015 to date and continuing at the rate of $260.00 per month. The Tribunal will allow the fees to 29/05/2015, and from 25/08/2015 to date and continuing. The respondent argued, in the related proceedings, that she did not receive the rules, and accordingly was not aware of the site fee increase from $220.00 per month to $260.00 per month, but under cross examination agreed that she was aware of the rules because her mother had a copy. The Tribunal is satisfied that she is liable for the fees at $260.00 per month. The amount payable is $641.10 for the period 16/03/2015 to 29/05/2015, and $1034.30 for the period from 25/08/2015 to date, and continuing at $8.54 per day. The Tribunal will allow the site fees up until the date of removal of the van from site, or 15/01/2016, whichever first occurs, on the basis that the applicant has a duty to mitigate any loss.
The applicant also seeks to recover the arrears of increased fees for the period 16 December 2013 to 15 February 2015. The Tribunal is satisfied that the site fees were short paid for this period and allows the sum of $660.00 claimed.
The applicant claims the sum of $20.00 per week as late fees, pursuant to the park rules. The applicant argued that the respondent had accepted these payments in the past. However the Tribunal is satisfied that late fees are prohibited by s 21 of the Act. They are a charge by way of a penalty for continuation of the agreement. They are not agreed to "under the occupation agreement." The Tribunal declines to make the order sought in respect of the late fees. 1. Costs
The applicant submits that the respondent should pay his costs of both these proceedings, and the former proceedings. The regime in respect of costs is set out in the Civil and Administrative Tribunal Act 2013 ("the NCAT Act") in s 60:

Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) 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. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) 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, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant. (4) If costs are to be awarded by the Tribunal, the Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014 ) or on any other basis. (5) In this section: "costs" includes: (a) the costs of, or incidental to, proceedings in the Tribunal, and (b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.

The Tribunal must accordingly be satisfied that there are special circumstances in order to make an order for costs. The applicant submits that the special circumstances can be found in the way the proceedings were conducted, and in the adverse findings made by the Tribunal as to the respondent's credit. The applicant submits that these matters amount to special circumstances, entitling the applicant to an indemnity costs order.
On the other hand, the Tribunal must take into account that the solicitor for the applicant is the park manager. Without the involvement of the solicitor for the applicant as its manager, it is by no means certain that legal representation would have been granted.
Weighing up these competing interests, the Tribunal is not satisfied that it is appropriate to make the costs order sought. The matters referred to in respect of the failure to remove the goods or pay the site fees are not exceptional, and the Tribunal is not satisfied that the way the proceedings were conducted in itself justifies the order sought.

Orders 1. Pursuant to s 32 of the Holiday Parks (Long Term Casual Occupation) Act 2002 the Tribunal declares that site 63 was abandoned by the respondent on 01 May 2015. 2. The Tribunal finds that the goods, including the moveable dwelling on site 63 are abandoned goods. 3. The applicant is authorised to remove, destroy, sell or otherwise dispose of the abandoned goods in accordance with Regulation 8 of the Holiday Parks (Long Term Casual Occupation) Regulation 2003. 4. Deborah Anne Taylor is to pay Charles James Moloney the sum of $19412.80 immediately. 1. Reasons: cost of removal of abandoned goods from site 1. Deborah Anne Taylor is to pay Charles James Moloney the sum of $2,335.30 immediately. 1. Reasons: site fees from 16/03/2015 to 29/05/2015 $641.10 2. Site fees from 25/08/2015 to 23/12/2015 $1034.30 3. Short payment of site fees $660.00 1. Deborah Anne Taylor is to pay Charles James Moloney the sum of $8.54 per day from 24 December 2015 until the abandoned goods are removed from site, or until 15 January 2016, whichever first occurs. 2. The applicant may at any time until 29 February 2016 apply to relist this application to quantify the occupation fees payable under order 6. K Ross General Member Civil and Administrative Tribunal of NSW 5 January 2016 Amended 13 January 2016 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: 12 February 2016

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Judgment (8 paragraphs)

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Cases Cited (4)

Cited By (1)