PALM LAKE RESORT P/L v KING and METCALFE

NCAT Appeal Panel|2021-02-16|Before: Resort P

Barbara Ann Woolnough (Fourth Respondent) Peter Connell (Fifth Respondent) Valerie Connell (Sixth Respondent) James Edward Sullivan (Seventh Respondent)

2019/00409660 (AP 19/57220): Palm Lake Resort PL (Appellant) Ian King (First Respondent) Coral Smith (Second Respondent) Arthur Smith (Third Respondent) Douglas Blackman (Fourth Respondent) Sylvia Parker (Fifth Respondent) Patricia Blackburn (Sixth Respondent) Michael Menken (Seventh Respondent) Representation: Counsel: C D Wood SC (Appellant) P Batley with A Sotera (Respondents)

Solicitors: Hopgood Ganim Lawyers (Appellants) Tenants' Union NSW Co-op Ltd (Respondents) File Number(s): 2019/00405659 (AP 19/57216); 2019/00409660 (AP 19/57220) Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Before: W Priestley, Member File Number(s): RC 19/33872 and others listed in primary orders

Background to appeal

The respondents to the appeal were applicants in the primary proceedings and are residents of the appellant owner's residential community in the Northern Rivers region of NSW. The appeals, as did the primary proceedings, concern the right of the owner to charge site fees on a higher basis than that for which the residents contend, and some residents' claim for a refund of any excess.
The appeals were heard together as they involved common issues of law. This was the case for those of the residents who were successful below and have been joined as respondents to the appeal - there was a small number whose site fee formula differed and led to a different result or who withdrew their appeal for collateral reasons.
We were informed that the outcome of other proceedings and the effect on hundreds of site agreements was in issue. No doubt this means that the matter may go further. These factors have not impacted our decision on the substance of the matter or our provisional view on costs of the appeals.
The primary member made two sets of orders, on 10 and 12 December 2019, in respect of different sets of the many proceedings that had been filed about 25 July 2019. The substance of the orders varied between different matters according to whether or not a refund was claimed or only prospective relief. Those that claimed a refund did so in some cases for longer than twelve months after all but the most recent site fee increase by notice in June 2019. The reasons supporting all orders were set out in detail in the primary member's reasons of 12 December 2019.
The essential facts were not in dispute. The relevant residents had site agreements that, apart from one mentioned separately below, contained after 2018 a similar formula for charging of increase annually in site fees, being CPI or 3/3.5% (dependent on the individual agreement) whichever was the greater. The residents alleged that the formula contained two fixed methods rather than one for increasing site fees. This was said to contravene various provisions of the Residential (Land Lease) Communities Act 2013 (NSW) (the Act), which required the lower of two fixed methods to be applied.

Primary decision and reasons; relevant legislative provisions

The primary member found jurisdiction under ss 66 with 156 of the Act as there was a dispute as to the effect of s 66.
The primary member refused an extension of time for the applications but ordered a refund of the part of site fees in respect of which relief was sought within time, being increases under a notice dated 13 June 2019. Increases under earlier notices since the commencement of the Act were denied. There was machinery for resolving disputes over the amount.
Under s 157(1)(b) of the Act, the owner was ordered to vary the term about annual site fee increases by the lesser rather than the greater of CPI or 3/3.5%, so that the entire term of the site fee agreement read as follows: "The fortnightly site rent amount will be reviewed annually each year and will increase by CPI or 3/3.5% whichever is the lesser [replacing 'greater']."
The primary member added of his own motion, since he found no prejudice, the application for extension of time which was integral to seeking of a larger refund under s 68 of the Act, which contained a twelve-month claim period. The residents also claimed the refund under ss 85, 156 and 157 of the Act and said that such provisions did not contain a time limit.
The primary member rejected ss 85 and 156 of the Act as separate bases from s 66 for the claim made and rejected the application for extension of time for absence of the required type of evidence. No appeal was brought by the residents against these findings or the limit of relief that followed under the primary orders already quoted.
The primary member found that s 157 of the Act was ancillary to the substantive power under s 68 of the Act and did not form a separate basis for relief. No appeal against this finding and the consequential limit of relief was brought by the residents.
The primary member quoted in full the debated legislative provisions. We repeat here the parts that were the focus of the primary decision and which re-emerge for consideration in this appeal. We also note that s 12 of the Act prohibits "contracting out" and s 12(3) voids terms of site agreements to the extent they are inconsistent with the Act or regulations made under the Act.
Section 65 of the Act provided as follows: "(1) Site fees payable under a site agreement can be increased only if the increase is made in accordance with this Division. (2) A site agreement may provide that site fees payable under it may be increased in accordance with either of the following procedures: (a) at specified intervals (or on specified dates) by a fixed method, which may be either: (i) by fixed amounts, or (ii) by a fixed calculation (for example, in proportion to variations in the Consumer Price Index or in the age pension), (b) by notice (otherwise than by a fixed method)."
Section 66 of the Act relevantly provided as follows: "(1) This section applies to a site agreement that provides for the increase of the site fees by a fixed method. (2) A site agreement must not provide that the site fees may be increased by more than one fixed method. If more than one fixed method is specified, the method that results in the lower or lowest increase of site fees is the applicable method. (3) The operator must not increase (or attempt to increase) the site fees that are to be increased according to a fixed method otherwise than in accordance with that method and this section. Maximum penalty: 50 penalty units. (4) The operator must give at least 14 days' written notice to the home owner of any increase in site fees, even if the timing of the increase is specified in the site agreement. … "
Under s 68 of the Act: "(1) A home owner under a site agreement may apply to the Tribunal for an order directing the refund of overpaid site fees on the ground that the increase of site fees did not comply with a requirement of this Division. (2) The Tribunal may make any of the following orders: (a) an order directing a refund to the home owner, (b) an order directing a refund to any other home owner in the community who the Tribunal becomes aware also had a non-compliant increase of substantially the same kind, (c) any ancillary order that the Tribunal, in the circumstances, thinks appropriate. (3) An application under this section must be lodged no later than 12 months after notice of the increase was given to the home owner."
Section 76 of the Act made in effect the type and manner of charge specified in the Act mandatory and exclusive.
Section 156 of the Act empowered the Tribunal to determine disputes relating to rights or obligations under the Act or site agreements.
Section 157 of the Act provided: "(1) The Tribunal may, on application by a party to a dispute or other matter before the Tribunal, or in any proceedings under this Act, make one or more of the following orders: (a) an order that restrains an action in breach of this Act or a site agreement or collateral agreement, (b) an order that requires a person to comply with an obligation under this Act or a site agreement or collateral agreement, (c) an order that relieves a party to a site agreement or collateral agreement from the obligation to comply with a provision of the agreement, (d) an order for the payment of an amount of money, (e) an order for the payment of compensation, (f) an order that a party to a site agreement perform such work or take such other steps as the order specifies to remedy a breach of the agreement, … (j) an order for anything else necessary or desirable to resolve a dispute. (2) An order under subsection (1)(a) or (b) may be made even though it provides a remedy in the nature of an injunction or order for specific performance in circumstances in which such a remedy would not otherwise be available. … (7) Except as provided by subsection (6) [no Tribunal jurisdiction to award compensation for damages for personal injury], nothing in this section limits the orders that the Tribunal may make under this Act."
In finding that there were two methods within the price increase provision, the primary member first focused on the disjunctive "or" between "CPI" and "3%"/"3.5%". He contrasted this with the conjunctive "plus" in the one site agreement rejected as contravening the Act by him, that contained the phrase "CPU plus 1.5%". He considered the latter had two components within the one method. In contrast, the formula containing "or" had two alternative "methods" or "procedures". This was consistent with the decision, on the predecessor legislation, of Grove J in Pine Needles Village PL v Residential Tribunal of NSW [2000] NSWSC 144 (Pine Needles) as both alternatives were directed to the same object.

Grounds of appeal

The notice of appeal in each matter was prepared by lawyers and in summary alleged, in composite form, the following grounds as errors on a question of law: 1. Sections 65(2) and 66(2) were wrongly construed and applied because, on the proper construction of those provisions, the site agreements did not provide for a site fee increase "by more than one fixed method" and so complied with s 65(2)(a) and s 66(2) of the Act (grounds 1 and 3). 2. The applications did not relate to a "dispute" between an owner and residents so as to attract s 157(1) of the Act on the proper construction of that term (ground 2).
The notice sought that the appeal and the cognate appeal be allowed and the primary applications dismissed except for the orders refusing extension of time and the order refusing relief in the proceeding where the formula was found to be only one method.
The residents sought to uphold the primary decision on the refund and prospective variation of the site agreements and did not contest by cross-appeal the refusal of extension of time and the refusal of relief where the formula was found to be only one method.
Additional to the primary member's reasons, the residents in their reply pointed to the use of "whichever" in the relevant provision of the site agreements.
They also pointed to the definitions in the Addendum to the site fee agreement: "'Percentage Increase' means the CPI Percentage Increase or 3.5% whichever percentage is the greater. 'Calculation' New Rent = Current Rent + (Current Rent x Percentage Increases)."
They further pointed to the Notice of Site Fee Increase by the owner that stated: "How the increased site fees have been calculated (ie show how the fixed method has been applied, either by a fixed amount or a fixed calculation): Current Site Fee x 3.5%".
Each of these was said to reinforce the correctness of the primary member's interpretation and that there was a relevant "dispute" that attracted the exercise of power under s 157 of the Act.
Ground 2 in each appeal was not pressed at the appeal hearing.

Applicable legal principles for appeal

The Civil and Administrative Tribunal Act 2013 (NSW) (CATA), s 80 provides as follows: "(1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Note. Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27(1). (2) 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. (3) The Appeal Panel may - (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances."
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.
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. A failure to give adequate reasons may also be an error on a question of law in certain circumstances.
In relation to adequacy of reasons, it is essential to expose the reasons for resolving a point critical to the contest between the parties: Soulemezis v Dudley (Holdings) PL (1987) 10 NSWLR 247 (CA) at 259, 270-272, 280-281; Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme (2003) 216 CLR 212 at [40]; Wainohu v NSW (2011) 243 CLR 181 at [58]; NSW Land and Housing Corp v Orr (2019) 100 NSWLR 578, [2019] NSWCA 231 at [65]-[77]; CATA s 62(3).

Relevant interpretation principles

The orthodox principles of statutory interpretation are enunciated, among much other authority, in Project Blue Sky v ABA (1998) 194 CLR 355 at 381-382, [69]-[71]; FCT v Consolidated Media Holdings Ltd (2012) 250 CLR 503, [2012] HCA 55 at [39]; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at 368, 374. Particular provisions must be construed consistent with the language and purpose of the statute as a whole which provides the context for the particular provisions. Context also includes legislative history and extrinsic materials but they cannot displace the meaning of the statutory text and they have utility if, and in so far as, they assist in fixing the meaning of the statutory text.
The prima facie basis of construction is that statutory provisions are intended to give effect to harmonious goals: "Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court 'to determine which is the leading provision and which the subordinate provision, and which must give way to the other'. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. … it [is] 'a known rule in the interpretation of statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by another construction they may all be made useful and pertinent'.": Blue Sky ibid at [70] [citations omitted].
As said by the majority in Blue Sky at [78]: "… the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction (eg, the presumption that, in the absence of umistakable and unambiguous language, the legislature has not intended to interfere with basis rights, freedoms or immunities) may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning."
In discussing the nature of pre-conditions or "preliminaries" to the exercise of a statutory power at [91]-93], the majority in Blue Sky said at [91]-[92]: "whether or not an act done in breach of a condition regulating the exercise of statutory power rendered the breaching act invalid and of no effect depends on whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue. Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person or body exercising the power or authority. Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition. Cases falling within the second category are traditionally classified as directory rather than mandatory. … if a statutory condition is regarded as directory, an act done in breach of it does not result in invalidity."
In undertaking the inquiry the Court said that the traditional mandatory/directory dichotomy (with the latter also, somewhat anomalously, looking to substantial compliance in some authority) had (at [93]): "outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in NSW. In determining the question of purpose, regard must be had to 'the language of the relevant provision and the scope and object of the whole statute'." [citations omitted]
In concluding that the failure to comply with a statutory pre-condition to exercise of power under another provision in the same legislation in Blue Sky was not intended to invalidate the exercise of power under that other provision, the majority pointed to indicators of invalidity (or otherwise).
Thus, the preclusive provision in question operated on the exercise of power under another provision rather than imposing "essential preliminaries to the exercise of" the statutory function in the other provision: at [94]. This strongly indicated that invalidity in breach of the preclusive provision was not the statutory intention.
Secondly, not all the obligations imposed by the preclusive provision had a "rule-like quality". The preclusive provision required the statutory functions in the other provision to be carried out consistent with statutory objects and regulatory policies and directions in which it was: "almost certain that there will be room for widely differing opinions as to whether or not a particular function has been carried out in accord with these policies or general directions. When a legislative provision directs that a power or function be carried out in accord with matters of policy, ordinarily the better conclusion is that the direction goes to the administration of a power or function rather than to its validity". (at [95]) The goal-like quality of some of the compliance requirements (in international conventions) illustrated the issue starkly in Blue Sky.
A further aspect (at [97]-[98]) was the potential for "public inconvenience" as a result of the invalidity. The goal-like qualities compounded that potential, especially where the goals were not stated in easily-accessible documents.
The majority also pointed out at [100] that the distinction was likely to be "of significance only in respect of actions already carried out by, or done in reliance on the conduct of, [the statutory agency in question]". The act remained unlawful for non-compliance and open to a declaration and potentially an injunction restraining the relevant agency "from taking any further action based on its unlawful action" by a person with sufficient interest.
In our view, the indicators in Blue Sky point in the present statutory context in the opposite direction to the direction they were found to point in Blue Sky. The method spelled out in the Act is required to be followed and any provision inconsistent with it is void to the extent of the inconsistency under s 12. Accordingly, there is no basis of charge to the extent a provision is void for inconsistency. Whether or not a refund can be enforced is governed by time and other provisions on which no appeal from the primary decision was brought.
The objects of the Act in s 3 are to improve governance, set out rights and obligations of owners and residents, enable prospective residents to make informed choices, establish dispute resolution procedures, protect residents from bullying, intimidation and unfair business practices, and encourage the continued growth and viability of residential communities in NSW.

Appellant owner's submissions on appeal

The owner submitted in chief that at least implicit within the primary member's decision was a finding that the site agreement contractual formula was by "a fixed method" being a "fixed calculation", between the two methods (fixed method or notice otherwise than by a fixed method) in s 65 of the Act. That was the basis for the explicit finding that there was "more than one fixed method" in the fixed calculation, that offended s 66(2) because the greater fixed method was imposed.
The owner identified in chief the issues on appeal as, first, whether the algorithms (as they were called), being CPI or 3/3.5%, comprised more than one fixed method and, secondly, whether the algorithms offended s 66(2).
The owner drew on authority consistent with and later than Blue Sky. In particular, it pointed to the following applications of principle (we refer to what we consider the most helpful and highest authority pointed to). First, statutory words can be construed but not re-written with reference to statutory purpose, which is to be derived from a consideration of the scheme of the statute as a whole: Mills v Meeking (1990) 169 CLR 214, [1990] HCA 6 at [19]; AEU v Department of Education and Children's Services (2012) 248 CLR 1, [2012] HCA 3 at [28]. Secondly, reading a statutory provision as if it contained additional or omitted words must be consistent in the modified meaning with the statutory language and is more readily accepted to correct simple, grammatical, drafting errors which would otherwise defeat the object of the provision: Taylor v Owners SP 11564 [2014] HCA 9 at [37]-[40].
The owner submitted in chief that the ordinary meaning of the words in s 65(2)(a) of the Act, in the context of the legislative scheme, defined two species of "fixed method", being a fixed amount and a fixed calculation. The existence of more than one fixed method in s 66(2), informed by that characterisation, occurred only when there was both a fixed amount and a fixed calculation or, possibly as an extension of that argument, two means or types cumulatively within the fixed calculation. Thus, a contract that contained a fixed amount such as $100 plus a formula such as 1% above CPI would offend and, although unnecessary to decide in the present appeal, so potentially would a contract mechanism that varied from year to year such as a fixed amount in one year and a formula in the following year.
It was submitted that, if the primary finding had been the legislative intent, then "fixed calculation" rather than "fixed method" would have been used. The application of that submission within ss 65 and 66, where the phrase is used in various places, was not defined.
It was also said that one could re-word the current expression into a single mathematical expression or a single phrase "the greater of 3.5% and CPI" which removed the word "or" focused on by the primary member.
Further, even on the current expression one did not offend the requirement that there be an increase by no more than one fixed method as the current expression excluded that possibility (either CPI or fixed percentage, but not both).
Earlier authority, on the preceding legislation, was relied upon in saying that a single method can contain a number of alternatives provided the choice of alternatives is subject to the application of a formula, rather than the owner's discretion: Resident Application (Busine): Excessive Rent Increase [1999] NSWRT 113. The relevant provision, s 53(6), of the then Residential Parks Act 1998 (NSW) required that there be "a method for calculating the amount of the increase" in rent "set out" in the agreement.
The owner's written submissions in reply focused on the ability to express algebraically the mathematical criteria on which rent was to be increased as a singular expression and on the outcome being a mathematical certainty with no room for discretion or choice by the owner. There was reference to earlier decisions on different legislative wording.

Respondent residents' submissions on appeal

The residents repeated in their submissions the extra arguments already outlined in their reply to appeal.
Additionally, the residents quoted the owner's own submission at first instance that referred to the alleged fixed calculation as producing an outcome. The residents pointed to the distinction inherent in that submission, and in the application of the formula itself, when there were alternative answers within the formula and one was the determined outcome. The residents pointed to the support for this distinction in Pine Needles at [7]-[11] between a calculation (being a reckoning or computation) and the method, the latter being the procedure for obtaining an object.

Consideration and conclusion

We agree with the reasoning of the primary member supported by the additional matters raised in the residents' reply to and written submissions on appeal. We now deal with the owner's arguments against those propositions and conclusions and with the owner's arguments in support of its analysis.
First, the fact that s 65(2)(a) of the Act specifies two means or types that can constitute a "fixed method" does not define the content of one of those methods, being "fixed calculation", nor does it limit the content of "by more than one fixed method" in s 66(2) to a situation where both the means or types in s 65(2) feature within the method at once (either in the same year or in sequential years).
Secondly, the word "fixed" is used in relation to both means or types of fixed method in s 65(2)(a) of the Act. The first means ("fixed amount") by definition is one amount. A "fixed" calculation by parity of usage is one calculation, not a series of alternative calculations with a choice between them, even if the choice is pre-determined rather than by the exercise of discretion. That applies however one words the series in terms of placing the word of choice - the greater of x and y or x or y, whichever is greater. It also applies however one expresses the series algebraically.
Thirdly, as the owner contends, there is a fundamental distinction in the current legislative scheme between a fixed method and a notice method where the notice contains a discretionary amount chosen to be imposed by the owner. Only the latter is subject to the dispute resolution provisions in ss 67 to 75 of the Act. That distinction appears to be where the meaning of "method" in earlier authority on an earlier statutory provision impacts; such earlier authority drew the distinction now acknowledged by the bifurcation between fixed method and notice method and accepts that the fixed method can include a formula such as is specified in the forms or means set out in s 65(2)(a) (in contrast to the discretionary notice in s 65(2)(b)). It appears to be designed to protect residents against arbitrary increases outside of the formula itself in the fixed method that are not predictable.
However, it does not follow, as the owner contends it does, that the fixed method does not have its inbuilt limit, which means that it does not require the dispute resolution provisions that are directed against unpredictability and arbitrariness (both being consistent with the expressed statutory objectives mentioned earlier). That limit is what is provided for in the interpretation of the fixed method for which the residents contend and provides both predictability (one means or type) and equity (the lesser if two means or types are specified).
Fourthly, the owner's submission in chief concerning substitution of fixed calculation for fixed method cannot have application in each place that phrase appears in ss 65 and 66 of the Act. It does not make sense in s 65. In s 66 it makes sense only if the premise of the owner's argument is already accepted, so adds nothing to support that argument.
Fifthly, the work to be done by s 66(2) of the Act is severely limited by the owner's interpretation. The intention appears to be to provide the lower or lowest where alternatives are built into the fixed agreement. That intention, consistent with the objects of the present legislative scheme, is not limited to where both means or types of fixed method (in s 65(2)(a)(i) and (ii)) appear in the formula. It also applies where there is an alternative within one of those means or types, being the use of a calculation formula.
To illustrate: the owner says that it is impermissible to have the alternatives of a fixed amount and a formula in the one year. It seems however consistent with the owner's overall contention that an owner could have as alternatives either a fixed amount or an amount determined by formula in the one year, whichever is greater, because that is no different in absence of discretion or transparency on the owner's argument (and in the distinction from a notice otherwise than by a fixed method) than having the greater of a fixed percentage (3/3.5%) and CPI within a formula. But s 65(2)(a) provides "or" between the two means or types of fixed method that, consistent with the authority relied upon by the owner (and unlike the owner's argument on the site agreement and critique of the primary reasoning) cannot be ignored because it is integrally part of the statutory language in the provision. Such an anomalous outcome from the application of the owner's argument is avoided by the approach taken by the primary member and contended for by the residents.
Finally, it is with respect a mischaracterisation of the primary member's reasoning that it entirely depended on the use and placement of "or" in the contractual provision in the site agreement. Rather, the primary member saw that as an element in the detraction from the rationale for the absence of a means of challenge to a fixed method, which is consistent with the matters raised above under the third line of our reasoning.
Our conclusion is reinforced by but is not dependent on a further written submission on appeal by the residents. That submission pointed to the requirements, in ss 26 to 28 of the Act that complement s 12 already quoted, for inclusion of and compliance with the standard site agreement provisions for increases in Sch 1 to the 2015 Regulation under the Act.
The Fixed Method option specified in Sch 1 permitted selection of "only ONE option". The options listed were, in summary, CPI, a fixed dollar amount, a percentage, a percentage of the aged pension increase and "Other (specify)". The residents submitted that the requirement for selecting one "fixed method procedure … does not provide provision for park operators to hedge their bets by instead inserting a procedure for choosing the most advantageous fixed method option to use at a future point in time."
The obvious riposte in the owner's submission in reply was that "Other (specify)" left open the door for the type or means adopted by the owner.
However, there is force in the residents' submission when one takes into account the eiusdem generis aid to statutory interpretation. "Other (specify)" at the end of a list cannot be simply at large. In context it is appropriately governed by the other items in the list, all of which are single means or types of increase which specifically include, as single rather than composite means or types, the two means or types that feature in the owner's formula as it currently stands.
This point does not change whether one uses different language or re-formulates the language of the formula as the owner's submission in chief advocated.
The point also reinforces that there is no simple and exclusive dichotomy, as the owner submits, between the two types or means in s 65(2)(a) of the Act. Each of s 65(2)(a)(i) and the various types or means within s 65(2)(a)(ii) is listed with equal weight and separateness.
On the re-wording advocated for by the owner in its submission in chief, the residents pointed to the need for choice between the means or types within the formula before the re-wording or expression as a single formula can occur. Again, this reinforces our conclusion.
We do not place weight on the guidance on the Fair Trading website, put forward by the residents, as it is not a recognised aid to interpretation under s 34 of the Interpretation Act 1987 (NSW). We agree with the owner on this aspect.
The residents pointed to the difference between the Queensland and the NSW legislation and the origins of the owner in Queensland. We regard this as too speculative to rely upon and agree with the owner on this point.
Neither of the two preceding points of agreement with the owner affects our reasoning and conclusion in favour of the residents' interpretation and the primary member's conclusion.
We do not gain great assistance from the owner's contention, detailed in written submissions in reply, of the ability to express algebraically the mathematical criteria on which rent is to be increased as a singular expression. As the owner says, and the residents do not dispute, the focus is not on what is mathematically possible but, rather, the meaning of the legislative provision in its statutory context and having regard to its statutory purpose.

Appropriate relief on appeal

CATA s 81 provides as follows: "(1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following - (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance."
The appropriate relief on our reasons is that the appeals are dismissed.

Costs of appeal

Leave for legal representation on the appeal, and for the residents' advocate, was granted on 16 January 2020 at the same time as the appeals were ordered to be heard concurrently.
The parties were content to have questions of costs deferred for determination on the papers without need for further hearing and after delivery of the substantive decision.
It may be useful to the parties to indicate the relevant provisions and considerations with respect to costs.
Rule 38A of the Civil and Administrative Tribunal Rules 2014 (NSW) 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 which requires special circumstances (of which examples are given) in the ordinary course.
Rule 38 applies when the amount claimed or in dispute in the proceedings exceeds $30,000. In Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 at [37]-[38], the Appeal Panel found that "'[P]roceedings'" refers to the process set in motion, or commenced, by lodging an application or notice of appeal. That process includes the steps taken by the Tribunal to hear and determine whether to grant the relief sought in the application or notice of appeal, as well as any interlocutory or ancillary steps. Proceedings are defined by the subject matter raised in the application or notice of appeal. The participants in proceedings are limited to the parties determined in accordance with [CATA s 44 and the Rules]".
In Knox v Bollen [2018] NSWCATAP 106 at [67]-74], the Appeal Panel explained that the Allen decision was in the context where a number of proceedings against the same respondent were, consistent with the guiding principle in CATA s 36, heard together. The decision in Allen that, absent consolidation, two proceedings between the same parties, effectively being defences to each other's claims and cross-claims against each other, remained separate proceedings did not prevent their characterisation for the purposes of rule 38 and rule 38A as part of the same proceedings. This was particularly the case where, as found in Allen at [57], the test for whether the amount in dispute was more than $30,000 depended upon "whether there is a realistic prospect that in each appeal the wealth of the [relevant] party would be changed by more than $30,000 or, put another way, whether the right claimed by the [relevant] party, but denied by the decision at first instance, prejudices that party to an amount in excess of $30,000".
Although we do not presently know, the amount of refund claimed may have exceeded $30,000 on the above principles.
The starting point for exercise of costs discretion on the usual principles is that costs follow the event. "The event" is usually the overall outcome of the proceedings - did the successful party have to go to the Tribunal (in this case) to get what it achieved, rather than being offered at least that relief. If there are distinct issues on which the party seeking relief did not succeed, that may be taken into account in the exercise of costs discretion. Appeal Panel decisions have made no order as to costs (to the intent that each party paid its or their own costs of the appeal) where there has been a measure of success on both sides: Johnson t/as One Tree Constructions v Lukeman [2017] NSWCATAP 45 at [25]-[29]; applied in Oppidan Homes PL v Yang [2017] NSWCATAP 67.
For an award of costs on other than the ordinary basis, a party's conduct of the proceedings themselves, or the nature of the proceedings themselves (for instance, misconceived), or an outcome less favourable than an offer, are considered. The principles are explored in Latoudis v Casey (1990) 170 CLR 534, Oshlack v Richmond River Council (1998) 193 CLR 72 and in this Tribunal in Thompson v Chapman [2016] NSWCATAP 6 and Bonita v Shen [2016] NSWCATAP 159, citing earlier consistent authority. The principles have resonance with at least some of the "special circumstances" in CATA s 60(3) that are required to justify a costs order when rule 38A does not apply.

Orders

The orders we accordingly make are as follows: 1. Appeals dismissed. 2. Submissions and evidence in support of any costs application is to be lodged with the Appeal Registry and given to the other party(ies) within 14 days of the publication of these orders. 3. Any submissions and evidence in response to any such costs application are to be lodged with the Appeal Registry and given to the other party(ies) within 14 days thereafter. 4. Any submissions in reply are to be lodged with the Appeal Registry and given to the other party(ies) within 7 days thereafter. 5. Submissions on any application for costs by each party are not to exceed five pages in length. 6. Note that the parties are content to have any contest on costs determined on the papers.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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

Amendments 06 January 2023 - Typographical error in paragraph 87 corrected 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: 06 January 2023

Residential Parks Act 1998(NSW)

(2019) 100 NSWLR 578

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