The appellant is a member of the respondent community association (CA) in Cessnock district in the Hunter Valley, New South Wales. The CA is engaged in winery and olive production.
On 12 July 2018 the primary member granted most of the relief sought by the CA. The relief granted was in the form of remedial works to a swimming pool and surrounding fence on the appellant's lot within the CA, the removal of decks and roofing above the decks in the centre of the appellant's house, which returned them to the condition prior to that decking and roofing being undertaken, and the relocation of a water tank to a location within the designated building area so that it complied with the community management statement (CMS) of the CA. Evidence of compliance with the first two sets of works was ordered to be produced within 60 days of the date of orders and moving of the water tank was to be undertaken within 30 days of the date of orders.
The appellant was also ordered to pay the CA's costs on the ordinary (called in the decision party/party) basis within 14 days after those costs were agreed or assessed.
The primary member indicated orders at [87] and [89] of his reasons which were not the subject of notation of formal orders in the record at the outset of the primary decision. There was no application in respect of this matter during the the appeal.
The orders were said to have been made in SCS 17/29022 (the appeal from an adjudicator's decision). SCS 17/33366 (an adjudication referred to the Tribunal) was dismissed with each party to pay its or her own costs. However, the formal orders referred to the dismissed proceedings (with no order as to costs) as "The Appeal SCS 17/33366". At [92]-[94] and [99] of his reasons the primary member noted the common position of the parties that the Tribunal had power to award costs in the application for adjudication but not in respect of the external appeal. At [9] and [10] and [12]-[13] of his reasons the primary member referred to the appeal proceedings as SCS/29022 and the further (adjudication) application as SCS 17/33366. It therefore appears to us that an inadvertent reversal of the references to the relevant proceedings for the costs orders has occurred and that we should correct that slip under s 63 of the Civil and Administrative Tribunal Act 2013 (NSW).
The proceedings had a complex procedural history to time of the primary hearing, which (as already said) took the cognate form of a hearing of an appeal by the CA from a decision of a strata adjudicator and a fresh adjudication application by the CA claiming in substance the same relief and which was referred to the Tribunal.
Determination of the relief sought in the fresh adjudication application meant that all the relief the subject of the appeal had been addressed, leading to the dismissal of the appeal with no order as to costs, as already stated.
[2]
Grounds of appeal
The Notice of Appeal lodged, within time, on 9 August 2018 said that it challenged all orders made in SCS 17/29022.
The grounds for that challenge were, in summary, as follows:
1. The primary member erred in finding that the swimming pool and surrounding fence were non-compliant with relevant Codes: a complying development certificate and occupation certificate in respect of the pool were provided to and not properly considered by the Tribunal.
2. The primary member erred in finding that the enclosure, including roofing, of the decks did not comply with the CMS: the statement of a town planner put forward as an expert (the town planner statement) was provided and not considered; the centre deck and roofing could not be seen from any public place in the CA; the appellant was not responsible for these works and purchased with the deck covered; the appellant presented evidence that she replaced the roof sheeting due to weather damage that rendered the existing sheeting dangerous; the appellant presented evidence that the deck roofing covered an internal area of the building and was therefore within the existing roofline envelope; the appellant presented evidence that the deck was part of the site coverage calculations and the roof had no effect on those calculations.
3. The primary member erred in finding that the enclosure of the water tank at the rear of the house did not comply with the CMS: the town planner statement was provided and not considered; the water tank was installed before purchase and was previously approved by the CA and the local Council despite its being partly outside the building envelope.
4. Had the primary member considered the town planner statement it would not have made the substantive orders sought by the CA and the appellant as the successful party would have been entitled to a costs order.
The orders that the primary member ought to have made were said in the Notice of Appeal to have been that the pool, the deck enclosure and roofing and the water tank were relevantly compliant and approved (as stated in the grounds), the appellant was required to take no further action in respect of them, and the CA was to pay the appellant's costs of the primary and all previous proceedings on an indemnity basis as agreed or assessed.
The Notice of Appeal also stated that leave to appeal from the primary decision (a decision in the Consumer and Commercial Decision) ought to be granted because the primary decision was not fair and equitable: the appellant was not granted an adjournment to enable her properly to instruct her new legal representatives and properly to present her case to the Tribunal; the primary member failed to consider the town planner statement; the appellant was "accordingly denied procedural fairness and natural justice and the failure of the Tribunal to consider the [town planner statement] resulted in a decision erroneous at law".
[3]
Applicable legal principles
Section 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (CATA) states:
"Any internal appeal may be made:
(a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and
(b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds."
Clause 12 of Schedule 4 to CATA states:
An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because:
(a) the decision of the Tribunal under appeal was not fair and equitable, or
(b) the decision of the Tribunal under appeal was against the weight of evidence, or
(c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
A Division decision is a primary decision of the Consumer and Commercial Division. The primary decision here is such a decision.
In Collins v Urban [2014] NSWCATAP 17 an Appeal Panel stated at [74]-[75] and [78]-[79]:
74 Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) where there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance.
75 As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that:
1 If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12].
2 The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153].
…
78 If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence.
79 In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this then, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] and following concerning the corresponding provisions of the [statutory predecessor to CATA (s 68 of the Consumer Trader and Tenancy Tribunal Act)] and especially at [46] and [55].
The question of what constitutes significant new evidence not reasonably available at the time the proceedings under appeal were being dealt with was considered by an Appeal Panel in Owen v Kim [2017] NSWCATAP 26. In that appeal the Appeal Panel stated at [37] -[39]:
37 In Owners - SP 76269 v Draybi Bros Pty Ltd [2014] NSWCATAP 29 the Appeal Panel stated at [109] in connection with cl 12(1)(c) of Schedule 4 to the Civil and Administrative Tribunal Act:
'In order to fall within this paragraph the appellant must be able to point to evidence which:
(1) is significant; and
(2) has arisen and is new in the sense that it was not reasonably available at the time the proceedings below were being heard.'
38 In Leisure Brothers Pty Ltd v Smith [2017] NSWCATAP 11 the Appeal Panel stated at [40 ]:
'The meaning of this clause was considered by the Appeal Panel in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. At [23] - [24] the Appeal Panel said:
'23 Unlike the WIM Act, the expression "reasonably available" is not qualified by the words "to the party". This difference suggests that the test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence. For example, in Owners SP 76269 v Draybi Bros [2014] NSWCATAP 20 at [114] the Appeal Panel refused leave because, although the appellant may not have been aware of the evidence (being an email), it could have obtained the evidence by summons. In Prestige Auto Centre Pty Ltd v Apurva Mishra [2014] NSWCATAP 81 at [17] the Appeal Panel granted leave because the respondent to the appeal had fraudulently altered evidence. The party seeking leave under cl 12(1)(c) could not reasonably have had available to them the evidence that the report in question had been fraudulently altered at the time the proceedings were being dealt with by the Tribunal. That fact was not known to the appellant at the time of the hearing and could not reasonably be known due to fraud.
24 Each of these cases illustrates that something more than a party's incapacity to procure evidence is necessary to satisfy the requirements of cl 12(1)(c).'
39 As stated at [27] in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown:
'the issue is whether, objectively, the evidence has arisen since the hearing and was "not reasonably available" at the time of the hearing.'
In Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 an Appeal Panel stated:
An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. Mr Ryan has not satisfied us that those circumstances apply to his case and we refuse permission for him to appeal.
A question of law may include, not only an error in ascertaining the legal principle or in applying it to the facts of the case, but also taking into account an irrelevant consideration or not taking into account a relevant consideration, which includes not making a finding on an ingredient or central issue required to make out a claimed entitlement to relief: see CEO of Customs v AMI Toyota Ltd (2000) 102 FCR 578 (Full Fed Ct), [2000] FCA 1343 at [45], applying the statement of principle in Craig v South Australia (1995) 184 CLR 163 at 179. These categories are not exhaustive of errors of law.
[4]
No error of law
The present Notice of Appeal is not an easy document to understand. Having regard to the approach taken in John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 in a situation where there was no legal representation, and despite that not being the case here, the Panel obtained from the appellant's legal representative confirmation that the grounds of appeal were advanced as errors of fact requiring leave to appeal and also as errors of law in so far as they raised that the town planner statement was not considered by the primary member. The town planner statement was served by the appellant with its costs submissions, approximately 6 weeks after the hearing.
The errors of law from that non-consideration were, in essence, said to arise because the town planner statement was directed to delivering the opinion that the requirements of the CMS were not required to be complied with if the relevant works complied with the relevant planning legislation.
There was no express challenge, in any ground of appeal, to the primary member's decision to the contrary of that opinion. There was also no express challenge, in any ground of appeal, to the primary member's rejection (at [53]-[55] of the primary reasons) of the town planner statement as too late, being sought to be placed into evidence as part of submissions on costs after close of evidence and submissions on the substantive issues.
There was also never any application, before the primary member or before the Appeal Panel, to re-open the evidence on the substantive issues. There appears to have been an application or applications to the primary member for an adjournment to obtain the opportunity to adduce further evidence (recorded at [47] and [54]. These followed rejection of an initial application for adjournment recorded at [45]-[46] when the appellant had only obtained legal representation six days before the hearing and when the timetable for filing of evidence, directed on 23 November 2017, had required the appellant to provide all documents on which she wished to rely by 21 December 2017 with an extension of time already granted into 2018.
The CA's written submissions and oral argument on appeal demonstrated an ability to point out these missing challenges and to deal with them. In those circumstances, we have considered the contents of the Notice of Appeal as if it contained the implicit challenges we have just mentioned.
However, even on that approach we are left with the absence of any attempt to re-open the evidence on the substantive issues or to justify an adjournment on the grounds that it would lead to evidence that would satisfy the basis for granting leave to re-open. It necessarily follows that the primary member did not have, and was never asked to have, before him in consideration of the substantive issues he was determining the opinion in the town planner statement.
In any event, having read the town planner statement we are of the view that the primary member correctly concluded at [55] that the town planner did not have the relevant expertise to give an opinion on the central issue of law, namely, whether or not the requirements of the CMS were to be complied with if the relevant works complied with the relevant planning legislation. Further, we agree that the primary member correctly concluded at [55] that the town planner statement did not purport to give legal advice or town planning opinions on the central issue of law. Indeed, the town planner acknowledged his lack of legal expertise at para 20 of his report. We are doubtful that any expert opinion on a central legal issue ought to be taken into account, but do not have to determine that question because of the preceding conclusions in this paragraph.
Further, the primary member's conclusions at [62]-[63] were in our view clearly correct on the central question of law if it is said (contrary to our view) that in this case there was an error of law in construction of the CMS and relevant legislative instruments. There is nothing in the relevant planning legislation drawn to our attention that provides that obtaining of approvals under that legislation and instruments made thereunder overrides the private contractual obligations between parties. The CMS provisions have, by legislative force and case law authority pointed to at [62]-[63] in the primary reasons, contractual effect between members of the CA and between the CA itself and each of its members: Community Land Management Act 1989 (NSW) s 13; OC SP 68751 v CA DP 270281 [2015] NSWCATCD 99; see also State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (the 2008 Code).
As stated earlier, the appellant did apply for an adjournment to the primary member to adduce further evidence. This was rejected because of its lateness. As the primary member pointed out (without directly pointing to non-compliance with directions about timely provision of evidence in advance of hearing), the evidence had closed, the appellant had not engaged legal representation until 7 days before the hearing, and no attempt was made even after that engagement to attempt to provide or indicate a basis for re-opening if that was the purpose of the adjournment applied for. That exercise of discretion in refusing an adjournment or any leave to re-open (if such an application had been made) was well within the range provided for in the decisions of the High Court and of the Appeal Panel that the primary member referred to at [54] but did not name, such as Aon Risk Services Aust Ltd v ANU (2009) 239 CLR 175, [2009] HCA 27 and most recently by the High Court in Rozenblit v Vainer [2018] HCA 23 and UBS AG v Tyne [2018] HCA
There was no denial of procedural fairness.
[5]
No basis for grant of leave to appeal on questions of fact
The notice of appeal was not helpful in identifying matters to support a finding that the requirements for leave to appeal, set out above were satisfied. The appellant's written submissions for the appeal referred primarily to paragraphs in and reasoning of the town planner statement as expert opinion. There appears to us to be no basis for a grant of leave to challenge as errors of fact the findings of the primary member and the process by which he reached those findings. We have dealt with that process and those conclusions in para 33(2) below.
In the alternative, the appellant, when asked in argument, relied upon the statements of opinion in the town planner statement as in effect submissions on the evidence before the primary member, in support of the application for leave to raise alleged errors of fact and to demonstrate those errors. Again, this was not stated in the Notice of Appeal as an express basis for grant of leave or identification of errors of fact. To the extent that it was implicit in the alleged failure to consider the town planner statement as a basis for the primary decision not being fair and equitable, we have considered the matters in the town planner statement as submissions on the evidence before the primary member, because the CA has in effect dealt with those matters.
It should be noted that the primary member found, and it is not challenged in this appeal, that the only evidence before the primary member at time of primary hearing was provided by the CA. There was no significant new evidence on the substantive issues that was sought to be put forward on appeal, which removed from consideration one of the bases for a grant of leave to appeal.
In our view, none of the matters raised in the town planner statement, treated either as submissions, establishes that the primary decisions on matters of fact was against the weight of evidence or otherwise not fair and equitable.
In particular:
1. The Complying Development Certificate and OC with respect to the pool are not evidence of compliance with relevant codes: Ku-ring-gai Council v Chan [2017] NSWCA 226.
2. CA approval was not sought for the relevant works as the CMS requires: CMS by-law 2 and Architectural and Landscape Design Guidelines (the Guidelines) in CMS Part 7 clauses 3.1, 3.2, 5.3, 7.3, 8. (The Guidelines are expressed to be binding on members as part of the CMS by by-law 1.) As the primary member found at [74]-[90], on the CA's unchallenged evidence the relevant works had been carried out or were continued to be carried out without CA approval and such approval would not have been forthcoming on the existing plans (if applied for) because there was insufficient detail in those plans to enable assessment of compliance with the CMS including the Requirements or there was non-compliance with the CMS including the Requirements. Among other matters of non-compliance, relevant Council approvals for the pool had not been obtained when the existing submissions for CA approval were prepared, the roofing and decking extensions exceeded the maximum permitted enclosure within a lot's designated building area, certain platform and water tank works were outside the designated building area (with the platform also over an easement), and certain carport works and air conditioning works had not been carried out in accordance with previous approvals. There was no alternative solution put forward to the proposed remediation by removal of the unauthorised works, reinstatement of the pre-existing state of the property, and relocation of items outside the designated building area.
3. The primary member reached the conclusions in (2) having considered the appellant's submissions at primary hearing which were recorded by him at [48]-[52] of his reasons. In effect the primary member's conclusions indicated that the appellant's submissions did not accord with the evidence before him, or were against authority, or were not supported by evidence, or (most significantly) did not deal with the uncontradicted CA evidence of absence of relevant and required consent from the CA under the CMS. The CA's submissions and evidence were recorded at [14]-[35] of the primary reasons. The primary member in effect accepted that the CA's submissions were grounded in the only evidence before him. The town planner statement, treated as submissions, would need to demonstrate a basis for leave to depart from that conclusion.
4. The town planner statement, treated as submissions, does not contradict or add to the above conclusion in respect of the roofing. The statement accepts that the size of the roofing took it outside the exemption in the 2008 Code, so the replacement roofing applied by the appellant was also not within the exemption. The statement repeats instructions from the appellant that were not in evidence. The statement suggests a course of action to rectify or regularise the position which is beyond the scope of the proceedings.
5. The town planner statement, treated as submissions, accepts that the water tank was located partly outside the designated building area but says that the location of the water tank partly outside the designated building area was shown on plans approved by Council and the CA approved the development. The extent that the documents supporting that submission were in evidence was not established; the town planner statement did not identify the documents annexed to it as being in evidence and there was no other material before us to indicate that they were. To the extent that they were, the CA approval was distinct from Council approval and the CA approval did not refer to the water tank expressly, only the dwelling and adjacent garage, laundry and storeroom as a development. We do not take that as approval of every integer of the development when the Guidelines require specific approval for location of items outside the designated building area. Further, the approved plans do not clearly indicate the location of a water tank outside the designated building area.
6. The pool is the subject of comment in the town planner statement which appears to be unsubstantiated by precise reference to the evidence or the terms of the relevant order. The terms of the relevant order required only evidence of compliance with relevant Australian codes and, to the extent necessary to obtain that evidence, work on the pool and fencing. It does not expressly require removal of the pool for absence of CA consent.
7. Other matters addressed by the town planner statement are not the subject of orders. The town planner statement, treated as submissions, seems to speculate on what is reasonable beyond supporting evidence, having accepted that the structures in question are not approved by either the CA or the Council but are said to be exempt development within clause 2.18 of the 2008 Code. The statement repeats instructions from the appellant that were not in evidence.
8. Contrary to comment in the town planner statement, the presence or absence in the sale contract of part of the CMS does not affect its binding status on the appellant after she completed the purchase and became thereby a member of the CA.
Accordingly, we consider there is no basis for a grant of leave and, in our view in any event, no material errors of fact in the primary members conclusions on matters grounding the orders that he made.
[6]
Exercise of costs discretion at primary hearing
The CA rightly pointed out that none of the grounds for upsetting exercise of costs discretion set out in House v The King (1936) 55 CLR 499 applied. On its face, the primary member at [91]-[103] referred to the criteria supporting the award of costs as special circumstances in CATA s 60(3). There was no evidence that the amount claimed or in dispute in the proceedings (being the cost of doing the work under the orders sought by the CA) exceeded $30,000 so as to invoke Rule 38 in the Civil and Administrative Tribunal Rules 2013 (NSW) (Rules) and the primary member did not rely upon that rule.
[7]
Outcome of substantive appeal
The appeal accordingly fails on its substantive grounds. We set out our orders below.
[8]
Costs of appeal
Rule 38A of the Rules applies the same costs rules as applied in the Division when there is a departure under the Division rules (such as under Rule 38) from CATA s 60. As we have already said Rule 38 does not apply so Rule 38A has no work to do and CATA s 60 applies to costs of the appeal.
We were given material in relation to costs in a sealed envelope which we marked Ex AP5 on the appeal and did not open until completion of reasons and decision on the substantive appeal.
Even without sighting that material, we are of the view that the ground of special circumstances that the primary member referred to also is the ground for costs of the appeal being awarded against the appellant in favour of the CA under s 60(3).
In the case of the costs of the appeal, we are of the view that the special circumstances justify the award of costs on an indemnity basis even without sighting the material in Ex AP5. The appellant did not identify an error of law or the criteria for leave in respect of any errors of fact, or with any precision the alleged errors of fact, in the appeal grounds or when permitted to do so in argument. The absence in the appeal of matters fundamental to any hope of success (as we have identified above), together with the absence of an application to re-open also identified above, made this appeal doomed to fail and untenable, justifying an award of indemnity costs for the entirety of the costs of the appeal. No attempt was made to address these matters when they were pointed out in the reply to the appeal.
Since we have come to a conclusion on indemnity costs for the entire appeal independent of the material in Ex AP5, there is no need to rely upon its contents. We merely note its content without further discussion.
[9]
Orders
The orders we accordingly make are as follows:
1. Leave to Appeal is refused.
2. The Appeal is dismissed.
3. Appellant to pay respondent's costs of the appeal on the indemnity basis as agreed or assessed.
4. Pursuant to s 63 of the Civil and Administrative Tribunal Act 2013 (NSW), amend primary order 4 to change "17/33366" to "17/29022".
[10]
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: 20 November 2018