Rhodes v SES Village Pty Ltd

Should the Appeal Panel extend time for lodging the Notice of Appeal?

1. The general principles which apply in considering whether leave to extend time to appeal should be granted were considered in Kelly v Szatow [2020] NSWSC 407 at [31]-[32]. Relevant considerations include: the length of the delay and any associated reasons for such, the strength of the plaintiff's case and consideration of whether the defendants would be prejudiced by a granting of the application: see Jackamarra v Krakouer (1998) 195 CLR 516 at [3]-[5]; Tomko v Palasty (No 2) [2007] NSWCA 369 (Tomko) at [55].
2. The relevant considerations for an extension of time application in the Appeal Panel were set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]: 22. The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (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]; (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 61at [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 length of the delay

1. The delay in lodging the appeal was two days, and so was short.

The reason for the delay

1. In the Notice of Appeal the appellant sought an extension of time, noting that the application was sent by express post on 26 October 2022, within the time limit, but it would arrive at NCAT outside the time limit. At the hearing, the reasons given for the delay were the necessity to obtain legal advice and the inability to lodge the Notice of Appeal online. The appellant was still in New Zealand at the time and the Notice of Appeal was lodged in the timeliest manner available.
2. The respondent contested the application for an extension of time, noting that the appellant had not complied with the NCAT time limits in the application or the appeal.
3. It is common for litigants to seek legal advice. It would also be expected that legal advice would include advice as to the relevant time limits. All appellants are subject to the same requirements in lodging a Notice of Appeal and the appellant has not made out any particular hardship. We consider that the reasons for the delay are not compelling.

Relevant provisions

1. Section 37 of the Act sets out the operator's responsibilities which relevantly include: 37 Operator's responsibilities (1) The operator of a community has the following responsibilities - … (d) not to intentionally or recklessly damage or destroy any property of the home owners, other occupants or their guests, …
2. Section 37(1)(d) is also reflected in cl 20.2 of the site agreement.

Grounds of appeal

1. The appellant submitted that the Tribunal had made an error on a question of law in that; 1. The Tribunal's finding that the site agreement was frustrated and that the community operator was not required to give notice under the site agreement before removing the structure was inconsistent with Part 11 and s 133 of the Act; and 2. the Tribunal had reversed the onus in s 37(1)(d) and s 133 of the Act.
2. In the written submissions, the appellant also sought leave to appeal on the basis that the Tribunal's decision was against the weight of the evidence.

Scope and nature of internal appeals

1. Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: s 80(2) NCAT Act.
2. We have ultimately found that the appellant should not be granted an extension of time because the orders would not change even if the matter had been considered differently. We have considered this issue for the purposes of determining whether a question of law arises in the appeal.

Is there a question of law?

1. In Collector of Customs v Agfa-Gavaert Ltd [1996] HCA 36; (1996) 186 CLR 389, the High Court noted that general expositions of the law such those as set out in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (Pozzolanic) could be helpful in many circumstances, whilst noting that they lose a degree of their utility when the phrase or term in issue is complex. In Pozzolanic the Full Federal Court set out five general propositions in relation to the distinction between errors on a question of law and of fact in a statutory interpretation context: (1) The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law… (2) The ordinary meaning of a word or its non-legal technical meaning is a question of fact… (3) The meaning of a technical legal term is a question of law… (4) The effect or construction of a term whose meaning or interpretation is established is a question of law … (5) The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law … [however] when a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts of the case fall within those words, the question whether they do or not is one of fact. (citations omitted).
2. In light of the further findings set out below regarding futility, it is unnecessary to overanalyse whether the errors asserted by the appellant fall within questions of law or fact. It is open here for the Appeal Panel to accept that one or more of the appellant's grounds of appeal could fall within the first or fifth Pozzolanic proposition as a question of law.
3. In the event of a question of law being raised, the Appeal Panel decided to hear from the parties on the substantive issues both to determine the prospects of success on the merits for the extension of time or, in the alternative, under s80(3) of the NCAT Act by way of a new hearing (as foreshadowed in Order 8(3) of the Orders made on 2 December 2022).
4. Similarly to the Appeal Panel in Kaho v Parklea Operations Pty Ltd [2023] NSWCATAP 33 (Kaho) at [20] this approach would serve several purposes: If fairly arguable, it may warrant more extensive and careful consideration of the other relevant factors such as the extent and reason for delay, and the prejudice to the other party if an extension is granted. If particularly weak or apparently bound to fail, the applicant may be unable to demonstrate that refusal of an extension will work an injustice: see, for example, Rizk v FA Constructions Australia Pty Ltd (No 2) [2016] NSWCA 203 at [7], per Basten JA with Sackville JA in agreement.
5. Also similarly with the Appeal Panel in Kaho, as a result of hearing the parties on the substantive issues, we have refused the application to extend time to lodge the Notice of Appeal.

Would a rehearing result in different orders being made?

1. An appeal is generally from the order made, not the reasons: TriCare (Hastings) Limited v Allen [2015] NSWCA 344 at [10]. Where the order appealed from is correct, but the reasons erroneous, the appeal will generally be dismissed: Driclad Pty Ltd v Commissioner of Taxation (Cth) [1968] HCA 91; (1968) 121 CLR 45 at 64; Wang & Liu v State of New South Wales [2011] NSWCA 321 at [23].
2. For the reasons that follow we are of the view that the order dismissing the appellant's claim for damages was correct, but for reasons different from the reasons given by the Tribunal.

The appellant's case:

1. In the initial application, the appellant sought orders for the payment of an amount of money under s 157(1)(d) of the Act "to reflect the economic loss suffered [as a] result of the caravan on site 49 being demolished without consent of the applicant or in line with any authority from any other body, court or tribunal."
2. At the Appeal Panel hearing, the appellant noted that he had sought $10,000 in compensation.
3. In his statutory declaration and chronology, the appellant set out that he had purchased the home from the previous operator on 26 September 2020, around which time a site agreement was also signed. He was required to evacuate the site on 28 February 2022 due to flooding. He advised the respondent in the week following that he intended to travel on a pre-booked holiday to New Zealand as he had nowhere to live. He left for New Zealand on 9 March 2022, returning on 27 March 2022.
4. On or around 15 March 2022, the appellant notified the operator that he had requested an inspection from an engineer and builders to attend the site to provide a report on the work required. He advised the respondent on 15 March 2022 that he was still looking into whether his home could be saved but was informed by text message that the home could not be saved and a neighbour informed him that it had been bulldozed. On 17 March 2022 the appellant requested confirmation that the home had been condemned by a relevant authority. In response to an email from the appellant's solicitor on 17 May 2022, the respondent advised that they had met with a builder appointed by the appellant who assessed the home for 15 minutes and advised them to demolish it.
5. According to the original submissions: 1. the appellant did not have copies of receipts of purchase as they were destroyed during the flooding event; 2. the appellant acknowledged that the dwelling on the site had been impacted by the flooding event on 28 February 2022 which had an impact on the actual value of the dwelling at the time it was dismantled by the park operator, but the structural integrity of the dwelling remained intact; 3. given the limited opportunity for the appellant to make a valuation of the dwelling after the flooding and prior to the dismantling of the dwelling, there were difficulties in confirming a specific dollar amount for the amount of compensation sought.
6. The respondent's reply: According to its written submissions, the statutory declarations of Christopher Hughes and Sabrina Bates and the chronology, the respondent took over the Park on 20 September 2021 prior to the flood event. The Park had flooded on 28 February 2022 and residents had to evacuate to the evacuation centres. The Lismore City Council was unable to carry out inspections due to the extent of damage to the region and put out a notification that residents should self-assess. The appellant could not reside in his home as it had been moved from its stumps and he cleared out his belongings in early March.
7. Evidence before the Tribunal confirmed the appellant informed Park management that he was travelling to New Zealand and he suggested that he might not return. The appellant advised that he was sending a builder to evaluate his site to see if it could be rebuilt. The appellant informed Christopher Hughes that if his builder said the home was a write-off, it was to be removed from the Park and this was to be at the respondent's expense.
8. The appellant had paid no site fees since that time.
9. The appellant's builder inspected the home and instructed that it could not be salvaged and should be demolished. The van was removed on 16 March 2022 under instructions from the appellant's nominated builder.

Consideration

1. Section 157 of the Act sets out the orders which may be made by the Tribunal, including (relevantly): 157 Orders that may be made by Tribunal (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 - … (d) an order for the payment of an amount of money, (e) an order for the payment of compensation, … (j) an order for anything else necessary or desirable to resolve a dispute.
2. The Act gives the Tribunal power to award compensation for termination under Division 6 of part 11; however under s 139 this division only applies where an operator gives a termination notice to a home owner. Under s 10 the Tribunal can also award compensation for closure, however it was common ground that no notice for closure has been issued.
3. Taking into account the written and oral submissions made on the appellant's behalf, the appellant's claim for compensation appears to be based on breaches of s 37(1)(d) and/or s 133 of the Act by the respondent.

Did the respondent breach its obligations under the Act?

1. The appellant bears the burden of establishing a breach of the Act by the respondent: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156D - F (Glass J).
2. Under s 37(1)(d), the respondent had the responsibility "not to intentionally or recklessly damage or destroy any property of the home owners, other occupants or their guests."
3. The appellant acknowledged that the home had already been damaged by the floods, but contended that it had been destroyed when the respondents demolished it and removed it from the site during the clean-up without authority.
4. However, the evidence tendered by the respondent was that the appellant's builder had investigated the home and found it to be destroyed by the flooding. The respondent's representatives understood him to be acting on the appellant's behalf and had waited for his advice before the home was removed from site. The appellant did not challenge this evidence before the Tribunal. Nor has he provided evidence to show that the home was salvageable before being taken away in the clean-up. The evidence that he later sent a message indicating that he was still looking into whether the home could be saved does not change the unchallenged evidence that, at the time that it was taken away, the respondent was acting under the instructions of the builder that the appellant had sent to inspect the home.
5. The respondents provided unrefuted evidence that the appellant's builder had inspected the home, found it to be beyond repair and instructed that it should be torn down. The respondent's evidence, led before the Tribunal, shows that the appellant's builder had determined that the home was already destroyed and that the respondents were assisting the appellant to remove the home from the site in accordance with the instructions of the person he had sent to inspect it when it was determined to be unsalvageable, critically at no cost to the appellant. The appellant's evidence led at the first instance hearing did not establish that the respondent "intentionally or recklessly damage[d] or destroy[ed] any property" belonging to the appellant. As a result, the appellant has not established a breach of s 37(1)(d) of the Act or cl 20.2 of the site agreement by the respondent giving rise to a claim for compensation under the Act.
6. We note that the appellant alleges a breach of section 133 of the Act. Part 11 of the Act governs the Termination of site agreements. 133 Recovery of possession of residential site prohibited except by order (1) A person must not enter a residential site, or a home on a residential site, for the purpose of taking possession of the site or home before or after the end of a site agreement unless - (a) the person is acting in accordance with a warrant arising out of a possession order of the Tribunal or a writ or warrant arising out of a judgment or order of a court, or (b) the home owner has given vacant possession of the residential site, or (c) the Tribunal has made an order declaring that the home owner has abandoned the residential site. Maximum penalty - 200 penalty units.
7. Section 133 is a penalty provision which prohibits recovery of possession of a residential site except by order of the Tribunal. An operator taking possession of a site or home contrary to the section does not of itself give rise to an entitlement to loss and damage and does not of itself enable the Tribunal to make an order for compensation under s 157(1)(d) or (e). We are not of the view that section 133 is relevant to the disposition of the appeal.
8. The application for compensation on the basis of a breach by the respondent is not established and would be dismissed.

Has the appellant made out an entitlement for compensation or the payment of money?

1. A further difficulty for the appellant in making out his claim for compensation/payment of money is the absence of any evidence as to the actual or approximate value of the home after it was damaged by flooding but before it was taken away in the clean-up.
2. In the written submissions to the Tribunal, the appellant set out that the home was 20 years old when he purchased it for $20,000 in 2020. The site also included a single carport and tool shed that was purchased at the same time for $1500 with a gas hot water unit purchased for approximately $2000. The appellant noted that there were no copies of receipts as they were destroyed during the flooding. The appellant acknowledged that the home was impacted by the flooding event which also impacted the actual value of the home at the time that it was dismantled by the respondent. The appellant had observed that the internal walls incurred flood damage but he contended that structural integrity had been maintained.
3. The appellant submitted to the Tribunal: 23. Given the limited opportunity for the applicant to make a valuation of the dwelling after the flooding and prior to the dismantling of the dwelling, there are difficulties in confirming a specific dollar amount for the amount of compensation sought. 24. The applicant is seeking quotes to substantiate an estimate of the required amount of money spent to remedy the damage to subtract from the actual value prior to the floods.
4. The appellant submitted that it was difficult to adduce evidence to prove the compensable loss for the demolition of the home because it had been removed and destroyed before the appellant had the opportunity to obtain quotes. He had sought compensation on the basis of the resale value had the event not occurred. The home had suffered damage in the flood but it had then been totally destroyed when it was removed by the respondent. The appellant had not and could not provide evidence as to the actual value of the loss claimed to have been incurred by the respondent removing the home.
5. The respondent contended that the home in fact had negative value because it was worthless and needed to be taken away, which was done at the respondent's expense.
6. No evidence at all of the value of the home following the flood damage but prior to the demolition has been tendered and the appellant submitted that they could not do so. In Pacorp Holdings Pty Ltd v Waller [2017] NSWCATAP 167 at [58] the Appeal Panel held that "provided that some evidence of loss or damage has been produced, difficulty of assessment is not a bar to the assessment of damages, and where precise evidence is not available, the court or tribunal must do the best it can."
7. There was no evidence before the Tribunal or the Appeal Panel that the caravan had value, not even salvage value. We are of the view that it would not have been beyond the reasonable claimant to produce some evidence to assess the value of a caravan of like age and structure, or alternatively to obtain quotes from scrap metal yards to assess a salvage value. The only evidence before the Tribunal is that the appellant's builder upon assessment of the home stated "oh it's f***ed mate, your all good to tear it down." In the absence of any evidence as to compensable loss suffered by the appellant, we infer that the appellant's builder's assessment of the caravan was that the home was no longer of any value and that a remittal for further hearing of the issue is likely to result in a dismissal of the appellant's claim for loss and damage.
8. We find that the prospects of success in the appeal are low and an extension of time in which to lodge the Notice of Appeal should not be granted.

Conclusion

1. In light of these findings, we find that refusing to grant an extension of time in this matter, despite the short delay, would not work an injustice on the appellant.
2. The appellant has not made out any entitlement to compensation on the basis of a breach of the Act or the site agreement. He also did not, and stated that he could not, adduce any evidence as to the quantum of the claimed loss. Even if the matter were reheard, it would lead to the same orders as to compensation being made as were made by the Tribunal, namely that the application should be dismissed.
3. In those circumstances, even if the appellant succeeded on the grounds that the Tribunal had erred on a question of law, it would be futile to order a new hearing because there is no real chance of a different result.
4. Having regard to: 1. The substantive weaknesses in the appeal, which are summarised above; 2. the appellant's failure to provide a reasonable explanation for his delay in lodging the appeal; and 3. the appellant's failure to provide any compelling argument that a refusal to extend time for filing the appeal would work an injustice on him
5. we have decided to refuse to extend time to lodge the appeal.

Order 1. Leave to extend time to lodge the Notice of Appeal is refused. 2. Appeal dismissed.

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: 02 March 2023