Legislation cited: ACT Civil and Administrative Act 2008 ss 7, 56

Residential Tenancies Act 1997 ss 71C, 73, 73EK, 83

Residential Tenancies Amendment Act 2020 (No 2)

Cases cited: Australian Coal and Shale Employees' Federation v Commonwealth [1953] HCA 25; (1953) 94 CLR 621

Australian Education Union v Lawler [2008] FCAFC 135

Brambles Industries Ltd v Bell [2010] NSWCA 162

Casino Canberra Limited 051 204 114 v Kidman [2022] ACAT 22

Commissioner for Social Housing v Cotsell [2012] ACAT 25

Commonwealth v Verwayen (1990) 170 CLR 394

Duffy v ACT Planning and Land Authority [2021] ACAT 104

Excel Intelligent Pty Ltd v Thomson [2018] ACAT 4

Ezekiel-Hart v Council of the Law Society of the Australian Capital Territory [2021] ACAT 116

Formosa v Secretary, Department of Social Security [1988] FCA 291; [1988] 46 FCR 117

House v The King (1936) 55 CLR 499

Metwally v University of Wollongong [1985] HCA 28

Minister for Immigration and Cultural Affairs v Bhardwaj [2002] HCA 11

Minister for Immigration and Ethnic Affairs v Polat [1995] FCA 1204; [1995] 57 FCR 98

Ogilvie v Jemena Networks (ACT) Pty Ltd & Icon Distribution Investments Ltd T/A Evoenergy [2023] ACAT 20

Republic of Croatia v Snedden [2010] HCA 14; (2010) 84 ALJR 334

South Canberra Holdings Pty Ltd ACN 606 747 602 v Saunders [2021] ACAT 109

South Canberra Holdings Pty Ltd ACN 606 747 602 v Saunders [2022] ACAT 15

The Owners - Units Plan no 1475 v Davidson [2022] ACAT 10

Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55

Watson v Qantas Airways Ltd (2009) 75 NSWLR 539

Wu v Minister for Immigration and Ethnic Affairs [1996] 64 FCR 245

Your Local Plumbing Group Pty Ltd v Hirsch [2022] ACAT 83

Zeng v Crane [2022] ACAT 83

List of

Texts/Papers cited: Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (Lawbook Co., Sixth edition., 2017)

MJ Leeming, Authority to Decide: The Law of Jurisdiction in Australia (The Federation Press, Second edition., 2020)

Tribunal: Acting Presidential Member Prof P Spender

Date of Reasons for Decision: 27 September 2022

SOUTH CANBERRA HOLDINGS PTY LTD ACN 606 747 602

APPEAL TRIBUNAL: Acting Presidential Member Prof P Spender

1. The question whether the Original Tribunal erred in not allowing the parties to adduce further evidence as to the characterisation of the structures at Site X[∗] Canberra South Motor Park Fyshwick (the Site) is answered in the affirmative.
2. The parties are granted leave to adduce further evidence regarding the characterisation of the structures at the Site.
3. The appeal is to be listed for further directions on a time and a date to be advised by the tribunal.

1. The following statement of reasons was delivered to the parties on 27 September 2022. Further hearings have been held in this matter and the Tribunal has decided to publish this statement of reasons. For the publication, the Tribunal has added three paragraphs in the Conclusion below at [81]-[83].
2. The reasons below explain why the Tribunal has made the orders set out above. In the reasons below, a reference to 'ACAT' or 'tribunal' refer to the ACT Civil and Administrative Tribunal generally, whereas 'Tribunal' refers to the presently constituted tribunal. When referring to the first instance decisions, the Tribunal uses the expression 'Original Tribunal' or 'Senior Member'. The Original Tribunal handed down two decisions. The first decision (dated 11 November 2021) is referred to as the Interlocutory Decision[1] and the second (dated 13 January 2022) is referred to as the Final Decision.[2] The appellant is referred to intermittently as Ms Saunders and was the respondent in the first instance proceedings. The respondent in the appeal was the applicant in the first instance proceedings. In these reasons it shall be referred to as the respondent.
3. An appeal was filed in this matter on 19 January 2022 and concerns the orders made by the Original Tribunal in the Interlocutory and Final Decisions. The appellant contended that there were two broad grounds for the appeal:

(a) Ground 1: The Original Tribunal failed to properly exercise its jurisdiction. > > (b) Ground 2: The Original Tribunal failed to apply the Residential Tenancies Act 1997 (RT Act) correctly.[3]

4. A hearing was held in the appeal division of the tribunal on 20 May 2022. The parties made submissions about Grounds 1 and 2. However, the parties requested the Tribunal to make a decision about Ground 1 at this stage. The relevant issues in Ground 1 were formulated into a question which was: Did the Original Tribunal err in not allowing the parties to adduce further evidence as to the characterisation of the structures? The Tribunal has answered "yes" to this question. Ground 2 will be considered by the Tribunal in its future deliberations.

1. The Tribunal considers that the Original Tribunal erred in failing to allow the parties to lead further evidence as to the proper characterisation of the structures. The tribunal's jurisdiction under the RT Act is founded, inter alia, upon there being an occupancy agreement between parties which may be established if relevant structures are a manufactured home or mobile home. In this case, the appellant appeared to conduct her case (at least initially) on the basis that the relevant structure was a manufactured home, and the Original Tribunal relied upon this position in finding in the Interlocutory Decision that a Notice of Termination of Occupancy Agreement (NTV)[4] was valid. The respondent raised a question about this characterisation shortly after the Interlocutory Decision was handed down and appellant reagitated the issue, culminating in an application by the appellant to set aside the Interlocutory Decision. The Original Tribunal refused the set-aside application and made termination and possession orders in the Final Decision, applying the principle in Metwally v University of Wollongong[5] (Metwally) to preclude the appellant from conducting her case on a different factual premise to the one she advanced initially.[6] The Tribunal has found that Metwally may be distinguished from the present case. The Original Tribunal made an error in the exercise of his direction, that is, exercising the discretion to make termination and possession orders in the Final Decision once he became aware that the parties were not in agreement about the factual premise upon which the validity of the NTV depended.
2. The Tribunal has therefore granted the parties leave to adduce further evidence about the characterisation of the structures and stands the matter over for directions regarding the further conduct of the matter.

1. Recently in Zeng v Crane[7] the tribunal distilled the principles that apply in the appellate jurisdiction. The appellant is required to show that the Original Tribunal made an error of fact or law that was material to the result.[8] An appeal tribunal must determine whether the decision appealed against is wrong because an original tribunal fell into an error of law, made a finding of fact that is clearly wrong or exercised a discretion on a wrong principle or in a way that is clearly wrong.[9] The error must have affected the result.[10]

1. In the Final Decision on 13 January 2022, the Original Tribunal made orders for termination and vacant possession pursuant to section 83(1) of the RT Act with respect to a site at Southside Village Canberra (Site X). The respondent, South Canberra Holdings Pty Limited, is the Crown lessee and operator of the Canberra South Motor Park in Fyshwick. The appellant has had a connection to Site X since 2003. Ms Saunders is a long-term occupant of Site X under a written 'licence to occupy' dated 25 January 2013, which was granted to her by the respondent's predecessor in title. The respondent purchased Southside Village in August 2015 and became the grantor of Ms Saunders' 'licence to occupy'.
2. On 22 September 2020 the respondent served an NTV on the appellant. The NTV provided as follows:

TAKE NOTE THAT South Canberra Holdings Pty Limited (ABN 53 837 450 170) gives you notice of termination of the 7 day licence to occupy between us dated the 25/1/2013.

You are required to provide vacant possession of the site (including removal of all structures and debris on the site) by close of business on the 31/3/2021 being 6 months plus 1 week. You are required to ensure all occupancy fees and service availability charges are paid up to the date of vacant possession.[11]

1. On 14 April 2021, the respondent applied to the tribunal for orders for termination and vacant possession. In response to an enquiry made by the appellant's solicitor as to the reasons for issuing the notice, the respondent advised:

The relevant legislation that applies is Part 5A of the ACT Residential Tenancies Act.

The 6 months [sic] notice is a reasonable timeframe in this instance.[12]

1. On 13 May 2021, without any order or direction from the tribunal, the appellant filed a written outline (13 May 2021 Written Outline) that challenged the validity of the NTV on the basis that the termination power sought to be invoked by the respondent was not open by virtue of section 73EK of the RT Act. In the 13 May 2021 Written Outline, the appellant made several references to the structure on the land being a manufactured home. In a directions hearing on 1 July 2021, the matter came before the Original Tribunal and the appellant's submissions in the 13 May 2021 Written Outline were discussed. The Original Tribunal made the following orders on that date:

1. The [respondent] is to file and serve by 16 July 2021 a written submission answering the issues raised by the [appellant's] outline of submissions filed on 12 May 2021 [sic].

2. The [appellant] is to file and serve by 21 July 2021 any brief submissions in reply.

3. The question of whether the notice of termination dated 22 September 2020 is valid will be decided by the Tribunal as a separate question on the papers in advance of the determination of the remaining issues, if any.

1. The parties complied with the Original Tribunal's orders. Both parties contended that the applicable legislation was the RT Act as it stood at the time of the respondent's application (14 April 2021). Following the language used in the parties' submissions in the appeal, the relevant provisions of the RT Act which operated at this time are referred to below as the 'New Legislation'. In its written submissions dated 16 July 2021, the respondent adopted the appellant's categorisation of the structure as a manufactured home in submitting that the arrangement is an occupancy agreement within the meaning of section 71C of the New Legislation.[13]
2. On 11 November 2021, the Original Tribunal published the Interlocutory Decision, concluding that the separate question of whether the respondent's NTV dated 22 September 2020 was valid was answered in the affirmative.[14] In the Interlocutory Decision, the Original Tribunal found that part 5A of the RT Act applied to the 'licence to occupy' because this arrangement amounted to an occupancy agreement on 25 January 2013 when the respondent granted the 'licence to occupy' to Ms Saunders. However, part 5A was amended substantially by the Residential Tenancies Amendment Act 2020 (No 2) (Amendment Act) with the relevant provisions coming into effect on 3 March 2021. Following the language used in the parties' submissions in the appeal, the relevant provisions of the RT Act that operated prior to the Amendment Act are referred to below as the 'Old Legislation'.
3. Suffice it to say that the Original Tribunal concluded that the Old Legislation applied, concluding that there was nothing in the Amendment Act to indicate an intention for the amendments to operate retrospectively.[15] The Original Tribunal concluded that the Amendment Act did not affect the previous operation of part 5A of the RT Act or anything done or begun under part 5A.[16]
4. The matter was listed for directions hearing on 3 December 2021. During the course of that hearing, Ms Hutcheson (on behalf of the respondent) stated that she did not think that the structure on Site X was a 'mobile home' or a 'manufactured home', and as a result, the respondent was not obliged to provide an opportunity to Ms Saunders to sell the structure.[17] In response to Ms Hutcheson's comments, the appellant's legal representative contended (probably for the first time) that it was an issue that required further consideration.[18]
5. The Original Tribunal stated that this argument may have broader implications for the tribunal's jurisdiction and accordingly directed both parties to provide a position statement with respect to whether the structure is a 'mobile home' for the purposes of the RT Act. The orders made by the Original Tribunal in the directions hearing of 3 December 2021 were as follows:

.... The application is adjourned to Wednesday, 15 December 2021 at 4 PM.

(a) in the interim the party should consider whether the definition of a "mobile home" and, if not, the implication for the future conduct of the matter.

1. In response to this direction, the appellant provided submissions contending the structure was not a 'mobile home', and there were serious jurisdictional issues that needed to be resolved prior to any hearing on the merits.[19] The respondent argued that the structure was, in fact, a 'mobile home'.[20]

• 18. The matter was listed for further directions hearing on 15 December 2021. At this directions hearing, the participants discussed whether the structure was, in fact, a mobile home,[21] but further consideration of the issue was deferred until the final hearing of the matter.[22] The final hearing was held on 13 January 2022, which was preceded by a view of the premises by the Original Tribunal. At the start of the hearing on that day, the appellant made an oral application that the Original Tribunal should set aside the orders made in the Interlocutory Decision on the grounds of jurisdictional error and reopen the issue about whether the NTV was a valid notice, giving the parties the opportunity to lead evidence and make submissions as to whether the structure erected on the site was a 'mobile home'.[23] The Original Tribunal made the following comments about this application which the Senior Member described as a "set-aside application":[24]

The [appellant] says that I should find that the agreement is not an occupancy agreement because the structure is not a 'mobile home' within the meaning of the RT Act as in force on 25 January 2013 when the agreement was made, and accordingly that I should dismiss the application for a termination and possession order on the grounds that the Tribunal lacks jurisdiction. In effect, the [appellant] contends that the dispute is not an 'occupancy dispute' within the meaning of section 73 of the RT Act.[25]

1. The question for determination for this part of the appeal i.e., whether the Original Tribunal erred in failing to allow the parties to adduce further evidence about the characterisation of the structure was essentially dealt with in the Original Tribunal's reasoning for refusing the set-aside application. The Original Tribunal treated the set-aside application as being governed by section 56(c)(iii) of the ACT Civil and Administrative Act 2008 (ACAT Act). Under that provision, the tribunal may vary or set aside an order of the tribunal if "extraordinary circumstances" make it appropriate. The Original Tribunal referred to the decision of Duffy v ACT Planning and Land Authority[26] where the tribunal in turn referred to the well-known passage from the joint judgment of Gaudron and Gummow JJ in Minister for Immigration and Cultural Affairs v Bhardwaj (Bhardwaj).[27] The appellant's position was that an error in the interlocutory proceedings involved failing to give the parties an opportunity to be heard on the question of whether the structure erected on the site comes within the definition of 'mobile home', which she submitted was a Bhardwaj error that may be corrected only by reopening the issue of whether the arrangement is an occupancy agreement. The Original Tribunal accepted that a Bhardwaj error could amount to "extraordinary circumstances" for the purposes of section 56(c)(iii) of the ACAT Act. So, the question the Original Tribunal posed was whether the Senior Member had made such an error. The Original Tribunal stated that there were two foundational propositions on which the appellant's argument depended. The first was that the Original Tribunal incorrectly assumed that the parties agreed that the premises is a 'mobile home'. The second foundational proposition was about the parties agreed position that the occupancy agreement was based on the New Legislation rather than the Old Legislation.
2. In the Final Decision, the Original Tribunal set out in some detail the statements that were made by the appellant in submissions about the characterisation of the structure in the original proceedings, demonstrating that the appellant frequently referred to the structure as a "manufactured home".[28] The Senior Member stated that legal representatives appearing for the appellant had accepted that the appellant had conducted her case on the factual premise that the structure erected on the site was a manufactured home and that the agreement in relation to the appellant's occupation of the site was an occupancy agreement within the meaning of the New Legislation.[29]
3. The Original Tribunal then posed a question as follows:

the obvious question in those circumstances is why should the [appellant] now be allowed to conduct a case on an entirely different factual basis?[30]

1. The answer that was provided by solicitors acting for the appellant was that the submissions referring to manufactured home were preliminary and interlocutory in nature and not an overarching submission with respect to the case.[31]
2. The Original Tribunal found that there had been no failure to observe the requirements of procedural fairness:

...The [appellant] conducted her case on a factual premise that the respondent and the [t]ribunal accepted as uncontroversial. ... The agreement could be an existing occupancy agreement only if the structure described in paragraph 14 of the [appellant's] outline [the 13 May 2021 Written Outline] is a 'mobile home' within the meaning of the RT Act as in force when the agreement was made, which term comprehends a structure that, after 3 March 2021 would be termed a 'manufactured home'.[32]

1. The Original Tribunal then quoted the Metwally case[33] for the following proposition:

It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances it would be contrary to all principle to allow a party, after a case has been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.[34]

1. The Original Tribunal therefore held that the circumstances fell within the Metwally principle. The Senior Member found that there were no exceptional circumstances that would justify setting aside the orders made on 11 November 2021 in the Interlocutory Decision to allow the appellant to conduct her case on an entirely different factual premise to the one she had advanced initially, which the appellant did not dispute, and which was the factual basis upon which the Original Tribunal determined the question.

1. A hearing was held in this appeal on 20 May 2022. As stated above, at that hearing the parties made submissions regarding the two grounds of the appeal. The Tribunal will confine itself to answering the first ground but recognises that the parties have made extensive submissions about the second ground regarding the relevant legislation. The second ground will be considered by the Tribunal in its future deliberations.

The appellant's contentions regarding the first ground

1. The appellant argued that the Original Tribunal did not correctly exercise its jurisdiction because further evidence was needed as to the nature of the structure. The appellant contended that if the structure is indeed a permanent structure and is not capable of definition under the RT Act as a 'mobile home' or a 'manufactured home', the arrangement takes on a different characterisation to an occupancy agreement. The Tribunal will describe the appellant's contentions below under two broad headings. The first one was that the Original Tribunal was required to satisfy itself of the nature of the agreement - this is referred to as the jurisdictional issue. The second argument was that there is no bar to raising a jurisdictional challenge at a later stage, in particular that the Metwally principle does not apply to the present case. The appellant presented a third argument about whether the Original Tribunal had gone too far in finding the NTV valid as opposed to accepting or not accepting a challenge to its validity. This third argument will be dealt with briefly.

Ground 1(a) - The Original Tribunal was required to satisfy itself of the nature of the agreement - the jurisdictional issue

1. The appellant argued that an administrative body cannot, "merely by reference to the agreement of the parties, exercise a jurisdiction it does not have."[35] The appellant said that this:

...extends to the finding of jurisdictional facts, of which an administrative body must satisfy itself in order to properly discharge its functions. In short, no form of estoppel, including by reference to the conduct of the parties' representatives, may allow a court or tribunal of limited jurisdiction to extend its jurisdiction in a manner not supportable by the facts.[36]

1. The appellant argued that the Original Tribunal's jurisdiction was enlivened only in respect of agreements that were properly characterised as being 'occupancy agreements' or 'residential tenancy agreements' under the RT Act. Accordingly, the nature of the agreement was a jurisdictional fact of which the Original Tribunal was required to satisfy itself. The Original Tribunal reasoned that a piece of land upon which a mobile home is located may properly be subject to an occupancy agreement. That is, the land may be subject to an occupancy agreement, while the mobile home, which is not subject to the agreement, belongs as a matter of personal property to the occupant, following the tribunal's decision in Commissioner for Social Housing v Cotsell[37] (Cotsell). The appellant does not challenge this reasoning however she contends that Cotsell is not applicable to permanent structures affixed to land.
2. The Original Tribunal concluded that the structure in issue in this case is a 'mobile home', as in Cotsell, and that accordingly the agreement between the parties was an occupancy agreement. The appellant argued the difficulty with this proposition is that there was, at the time the decision was made, no evidence as to the nature of the structure on the land. Accordingly, there was nothing on which the Original Tribunal could rationally base its conclusion that the structure was a mobile home.[38]
3. The appellant argued that the Original Tribunal in the Final Decision repeatedly relied upon the submissions made by the appellant which described the structure as a "manufactured home".[39] The appellant admitted that the submissions did characterise the agreement as an occupancy agreement however even if her submissions could reasonably be taken as a concession of the point (noting that she did not concede this point), the Original Tribunal "could not rely upon this concession alone, it had to satisfy itself of its jurisdiction according to the evidence."[40] The appellant differentiated between the exchange of submissions in a tribunal and pleadings in a formal civil case.[41]
4. The appellant argued that the Original Tribunal should have:

... demurred on this issue until it could satisfy itself, on the basis of the evidence before it, of the nature of the agreement. By leaping ahead in its interlocutory decision, the [Original Tribunal] deprived itself of the opportunity to make an informed decision as to its jurisdiction: in essence, it concluded that it had jurisdiction because it considered that the parties agreed that it had jurisdiction. That conclusion [argued the appellant] was erroneous.[42]

... the root of the [Original Tribunal's] error lay in its conclusion is that the structure at issue in the case was a mobile home when there was no evidence to this effect and, consequently that the [relevant] Agreement was an occupancy agreement. The making of these findings in the absence of evidence was, without more, an error that would justify the setting aside of the [Original Tribunal's] decision.[43]

1. The appellant contended that the tribunal cannot by agreement of the parties artificially expand its jurisdiction.[44] There is considerable authority to that effect but two cases are particularly pertinent: Australian Education Union v Lawler (Lawler)[45] and Minister for Immigration and Ethnic Affairs v Polat (Polat).[46] The question of whether the structure is a manufactured home or mobile home is a jurisdictional fact of which the tribunal must be satisfied in order to enliven its jurisdiction, and that is to be distinguished from any other fact that might be before the tribunal because while those are the facts might be found in a particular way the tribunal must find a jurisdictional fact on the evidence. To decide otherwise would effectively permit the parties to agree to facts which might result in the tribunal acting ultra vires.[47] The thrust of Lawler and Polat is that one cannot through estoppel expand the powers of a statutory decision-maker. The principles of estoppel must always yield to the weightier principle of ultra vires.

Ground 1(b) - Was there a bar to raising a jurisdictional challenge at a later stage?

1. The appellant argued that there are three strands to this contention:

(a) It was the respondent, not the [appellant] who raised the issue of whether the structure was a 'mobile home'. > > (b) The way the Original Tribunal approached the issue once raised by the respondent was inconsistent with the proposition that the issue was actually closed. > > (c) The Original Tribunal erroneously relied upon Metwally when in fact that decision is inapplicable to the present case.[48]

2. The three strands of this contention are interlinked in the appellant's submissions, so the Tribunal will set out the appellant's contentions on strands one and two together and set out the contentions about the applicability of the Metwally case separately.

Strands 1 - 2 The respondent raised the issue and the Original Tribunal behaved inconsistently with the proposition that the issue was actually closed

1. In the first directions hearing following publication of the Interlocutory Decision (on 3 December 2021) Ms Hutcheson, on behalf of the respondent, stated as follows:

We don't think it meets the definition of mobile home or manufactured home.[49]

1. The appellant contended that Ms Hutcheson made this comment because she considered that the respondent should not be required to provide the appellant with an opportunity to sell the structure.[50] The appellant contended that this was a seriously advanced submission by the respondent by reference to the terms of the RT Act and was treated accordingly by the Original Tribunal. During the final hearing, the Senior Member put the matter as follows:

Now, the controversy which has given rise to this issue arose for the first time after I had given my decision and made the orders in this case and in perhaps an unwise remark, Ms Hutcheson suggested that the structure might not in fact be a mobile home that quite obviously contributed to that. That set this particular rabbit running.[51]

1. The appellant argued that the respondent first raised the issue about whether the structure did not meet the definition of mobile home or manufactured home, and this entitled the appellant to come back and present her position on the facts.

1. The appellant argued that Metwally was not applicable to the present case.[52] This situation is distinguishable from Metwally, where the relevant party had maintained a position through the litigation and then at the point of final determination attempted to present a contrary argument. The principle of Metwally applies to finally decided cases. In the present case, said the appellant, the relevant decision was interlocutory - it was not a decision that was intended to finally resolve the matter. Therefore, there could be no recourse to the desirability of finality in litigation which underpins Metwally.[53] The only decision sought to be disturbed by the appellant's assertion was an interlocutory decision where the matter remained live and the Original Tribunal remained obliged to exercise its jurisdiction over the matter.[54] That is to be distinguished from a case such as Metwally which deals with rights finally decided by an authoritative decision-maker.[55]
2. The appellant contended that the relevant principles that apply here are derived from Commonwealth v Verwayen[56] (Verwayen), which considered the situation where a party has changed track or reasoning on issues not previously raised in the course of the hearing.[57] Those principles were explained by Gaudron J in Verwayen[58] and relate principally to the closely related doctrines of estoppel, waiver and election.[59] The appellant's submissions quoted Gaudron J for the following proposition regarding election:

If, in the course of litigation, a person fails to plead a matter, take an available objection or pursue a particular point of law, the matter proceeds on the basis that the point which might have been taken is not in issue. Were it otherwise the conduct of litigation would be unmanageable. Of course, leave may be granted for the point to be raised notwithstanding the failure to take the point at the appropriate time. Generally, leave is granted if the point can be raised without injustice to the other party.[60]

1. The appellant contrasted this with the circumstances where a party deliberately and for forensic reasons decides not to raise a point. The appellant argued that this is a form of waiver but, as Gaudron J explained, courts ought to be more stringent in allowing a person to recover a ground that has been deliberately waived. As a matter of equity, the issue is whether the relationship between the parties is fundamentally changed as a result of a deliberate failure to take the point at an earlier time.[61] If the point sought to be raised at the later time was not deliberately withheld earlier, it cannot be said that there is any injustice if any disadvantage can be averted by an order for costs (assuming costs are available) or an appropriate adjournment to allow the parties to consider the matter at greater length.[62]
2. In the present case, the appellant argued that no deliberate election had been made not to raise the correct characterisation of the structure. Accordingly, the Senior Member should have turned his mind as to whether the matter ought properly to be raised at a later stage (rather than concluding that it simply could not be so raised). Having regard to the centrality of the characterisation of the structure to the Original Tribunal's jurisdiction and the lack of any identified disadvantage to the respondent, the Original Tribunal ought to have granted leave for the matter to be raised at that point, consistent with the remarks of Gaudron J in Verwayen.[63]
3. The appellant's contentions continued:

Merely because the appellant did not raise a challenge to the characterisation of the structure prior to the [Interlocutory Decision], did not mean that it could not do so at a later date. The issue was properly raised (indeed it was raised by the respondent's representative). It went to the core nature of the [Original Tribunal's] jurisdiction and was argued seriously by the parties. The [Original Tribunal] was obliged to have regard to the [appellant's] seriously advanced contentions as to the characterisation of the structure. In failing to do so, the [Original Tribunal] fell into jurisdictional error.[64]

Ground 1(c) - Did the Original Tribunal ask itself the incorrect question about the validity of the NTV in the interlocutory proceedings?

1. The appellant argued that she originally challenged the validity of the NTV on the basis that it did not give rise to a valid termination power pursuant to the New Legislation. The Original Tribunal did not accept that submission, however, in rejecting that submission the Original Tribunal took an extra step and concluded that the NTV was valid. The appellant asserted that the extra step was unnecessary and inappropriate and led the Original Tribunal into further error. The appellant further insisted that if the Original Tribunal decided to reject the appellant's challenge to the validity of the NTV the only conclusion open to it was that the challenge was not successful. There was no logical basis upon which the Original Tribunal could proceed to make the converse conclusion, that the NTV was in fact valid.

**The respondent's contentions regarding the first ground

Ground 1(a) - The Original Tribunal was required to satisfy itself of the nature of the agreement - the jurisdictional issue**

1. On this ground, the respondent submitted that by reason of 13 May 2021 Written Outline, the issues in dispute, including whether the relevant structure was a manufactured home, were narrowed by the parties and it is within that agreed factual matrix that the Original Tribunal was required to determine the preliminary question.[65] The respondent further argued that the tribunal cannot fall into jurisdictional error if a fact relating to jurisdiction is not raised for determination.[66]
2. The respondent noted that the appellant has been legally represented at all material times.[67] The respondent's application was listed for an initial directions hearing on 17 May 2021. On 13 May 2021, of her own volition and without any order or direction from the tribunal, the appellant elected to file submissions that intended "to provide the [respondent] with an overview of the contentions sought to be advanced".[68] The respondent points to seven references in the 13 May 2021 Written Outline where the appellant referred to the structure being a manufactured home.[69] The respondent's submissions described this as a concession.[70] As stated above, in its written submissions dated 16 July 2021, the respondent adopted the appellant's categorisation of the structure as a manufactured home in submitting that the agreement is an occupancy agreement within the meaning of section 71C of the New Legislation.[71] The respondent was sceptical about the appellant's argument (made in her reply)[72] that her legal representatives had not used technical language when describing the structure as a manufactured home.[73] The respondent said that, regardless of whether the legal representative for the appellant used technical language, a shorthand expression or any other type of language, in filing the 13 May 2021 Written Outline in this matter, it was the appellant that set the factual matrix of the matter to be determined at first instance, which included the characterisation of the structure as a manufactured home. The Original Tribunal adopted that factual presumption. Upon that factual presumption, the separate question was determined.[74]
3. The respondent discussed the set-aside application, saying that that the appellant was seeking to depart from her earlier representation that the structure was a manufactured home, being the representation that was the basis upon which the appellant's case was conducted and the respondent had defended that case by its acceptance that proposition.[75] Further, in this application, the appellant was seeking to be excused from the consequences of her mischaracterisation of the structure in her submissions in the 13 May 2021 Written Outline.[76]
4. In relation to the general question about whether the Original Tribunal erred in not satisfying itself that the agreement was an 'occupancy agreement', the respondent submitted that because of the appellant's unilateral decision to file submissions in the 13 May 2021 Written Outline (before any requirement to do so) she narrowed the issues in dispute and "effectively set the goal posts" in this manner.[77] The parties and the tribunal took the issues raised by the appellant as the issues to be determined in this matter. The appellant, who is legally represented, had a chance to oppose that course of action. Naturally, the facts that were not stated as being in dispute by the appellant (including the characterisation of the structure) were agreed by the respondent and it was on that basis the matter moved forward in the preliminary question was determined by the Original Tribunal.[78]
5. The Tribunal quotes the respondent's submissions as follows:

In circumstances where the parties having narrowed the issues in dispute, the tribunal ought to then determine the balance of the issues in dispute within that agreed factual matrix. The same, or substantially the same process happens in almost every civil dispute in our legal system. Once a factual allegation is admitted by the other side, the tribunal does not need to satisfy itself that fact. To require the tribunal to determine otherwise would offend the simple, quick, inexpensive and informal resolution of disputes.[79]

1. The respondent said that the appellant had every opportunity to raise an issue of fact if it was in dispute. The appellant's opportunities included, but were not limited to:

(a) the 13 May 2021 Written Outline; > > (b) the directions hearing on 1 July 2021; > > (c) its written submissions in reply filed 21 July 2021; and > > (d) by way of writing to the tribunal at any point therein.[80]

2. The respondent submitted that in circumstances where the parties have agreed to a factual matrix, the tribunal is not required to satisfy itself of those agreed facts. Further, on the basis of well-established authority,[81] an error of law cannot be said to have occurred where an identifiable issue is not raised by the parties and the tribunal is not asked to consider the same. Consequently, the respondent submitted that the Original Tribunal had not fallen into jurisdictional error.

Ground 1(b) - Was there a bar to raising a jurisdictional challenge at a later stage?

1. Regarding strands 1-2 of the appellant's arguments on this ground, the respondent contended that during the directions hearing of 3 December 2021, Ms Hutcheson raised the question about whether the home was a manufactured or mobile home in the context of the sale of the property. The Original Tribunal had already determined the matter on the factual presumption. Ms Hutcheson's statement was nothing more than a throwaway line in a very specific narrow factual context relating to the sale of the property.[82]
2. In relation to strand 3 of the appellant's arguments on this ground, the respondent argued that Metwally was correctly applied by the Original Tribunal to prevent the appellant from amending her earlier factual submissions that the structure was a manufactured home.[83] The respondent argued (on the basis of Metwally) that the appellant should not be able to run her case again.[84]
3. In response to the appellant's argument that Metwally only applies to finally decided cases and because the Interlocutory Decision was by its nature interlocutory,[85] the respondent said that the tribunal ought to consider the effect of the decision when applying Metwally. The Metwally principle focuses upon the substance of the decision not the form.[86] The effect of the Interlocutory Decision was that the validity of the NTV was finally decided. It did not matter whether the decision was properly classified as interlocutory or final. It is the finality of that decision to which the principles of Metwally apply.[87] The Metwally principles preclude the appellant from raising the new argument, which she deliberately or by inadvertence failed to put prior to or during the determination of the preliminary question, when she had multiple opportunities to do so.[88] Consequently, the respondent submitted that the principles in Metwally applied to the Interlocutory Decision and the tribunal has not erred in its application of those principles.[89]
4. Regarding the appellant's arguments about the application of Verwayen, the respondent relied upon the following quote by Gaudron J which supports its case which is set out above and is repeated now:

... if, in the course of litigation, a person fails to plead a matter, take an available objection or pursue a particular point of law, the matter proceeds on the basis that the point which might have been taken is not in issue. Were it otherwise the conduct of litigation would be unmanageable.[90]

1. In response to the appellant's distinction between a deliberate and non‑deliberate failure to take a point at an earlier time and in this matter equity ought to intervene to allow relief because there has been no deliberate failure, the respondent contended that the appellant had deliberately chosen to accept the factual conclusion that the structure was a manufactured home and that the agreement was an occupancy agreement for the purposes of the RT Act.[91] In the alternative, the respondent submitted that the appellant inadvertently took the position she did, therefore Metwally should be applied because the appellant "made [her] bed, [she] lost and now [she] wants to start afresh".[92] To do so, as the High Court in Metwally said, would be contrary to all principle.[93]

Ground 1(c) - Did the Original Tribunal ask itself the incorrect question about the validity of the NTV in the interlocutory proceedings?

1. The respondent argued that this point made by the appellant is misconceived because it is not necessary for the tribunal to either accept or reject specific challenges to the NTV's validity without also determining the NTV's validity because it leaves the door open for the NTV's validity to be re-agitated and this is contrary to the tribunal's principles regarding the simple, quick, inexpensive, and informal resolution of disputes.[94]

1. In reply, the appellant emphasised that it was the respondent who raised the proper characterisation of the structure, and the respondent cannot now submit that the appellant should be held to her initial submissions that characterised the structure as a manufactured home while ignoring that it was the respondent's representative that brought this issue into contention.[95]
2. The appellant conceded that the term 'manufactured home' was used frequently throughout the 13 May 2021 Written Outline and that the use of this term was far from judicious in the circumstances.[96] However, said the appellant, close analysis of the appellant's original submissions reveal that this term was not used in the technical sense (i.e. as defined under the RT Act) and was merely used as shorthand to describe the structure which is unlike an ordinary house in its construction. Two key textual indicia compel this conclusion:
   1. ...neither the original submission or the reply ever made reference to the definition as provided by the RT Act or provided any analysis as to whether this definition could be satisfied by the relevant structure in this case; and
   2. the appellant's reply, filed on 21 July 2021, refers to "a substantial, permanent structure, which is [the appellant's] manufactured home. Plainly, using the technical definition of "manufactured home", this submission would be a contradiction in terms: a structure cannot simultaneously be "permanent and substantial" and a "manufactured home" for the purposes of the Act.[97]
3. During the hearing, the appellant distinguished cases that were relied upon by the respondent on the basis that none of these cases address the issue of jurisdictional fact.[98] The appellant argued that the appropriate authorities that the tribunal should consider are Lawler and Polat.[99]

1. The parties agreed during the appeal hearing that a purported exercise of jurisdiction by the tribunal if the structure at Site X was not in fact a mobile home or manufactured home would potentially be ultra vires and therefore void.[100] During the hearing, legal representative for the respondent accepted the proposition that the parties by agreement cannot expand the scope of the tribunal's jurisdiction.[101]
2. The Tribunal has concluded that the Original Tribunal erred in refusing to allow the parties to adduce further evidence as to the characterisation of the structures. The nature of the error is an error in the exercise of the tribunal's discretion.
3. First, the Tribunal will make some general comments in relation to the error, followed by a discussion of Ground 1(b), then Ground 1(a) and finally a short mention of Ground 1(c).
4. The Tribunal finds that the discretion to set aside the orders in the Interlocutory Decision which were premised upon a factual proposition that the structure at Site X is a mobile home could have been exercised by the Original Tribunal during the directions hearing on 15 December 2021 or at the hearing on 13 January 2022. That factual premise was based upon submissions that were initially made by the appellant in the 13 May 2021 Written Outline which referred to the structures as a 'manufactured home'. The respondent adopted this terminology in the submissions which led to the Original Tribunal conducting a hearing on the papers and handing down its decision in the Interlocutory Decision. Initially the Original Tribunal did not err in relying upon this factual premise because the premise had been stated repeatedly by the parties, particularly the appellant's legal representatives, and the tribunal is entitled to rely upon the parties' agreement about facts. To so rely at this stage would not constitute an error because the tribunal would naturally consider that the parties have narrowed the issues in dispute.
5. The Tribunal notes that prior to the handing down of the Interlocutory Decision, the parties' submissions about the nature of the structure being a manufactured home were predicated upon their further submissions that the New Legislation applied to the dispute. In the Interlocutory Decision, the Original Tribunal found that the Old Legislation applied. This potentially led to confusion because the Old Legislation does not contain the term 'manufactured home', only 'mobile home'. When the Original Tribunal handed down its decision and found that the Old Legislation applied, a question arose about the link between these terms in the Old Legislation and the New Legislation. However, the Tribunal considers that the Original Tribunal did not err in concluding that the parties' use of the term 'manufactured home' had the same meaning as 'mobile home' in the Old Legislation.
6. However, shortly after the Interlocutory Decision was handed down, at the directions hearing held on 3 December 2021, the respondent frankly stated that the structure was not a mobile home. The respondent argued on appeal that this was a throwaway line, but the transcript (which is extracted below) confirms it was a deliberate comment. The Tribunal accepts that Ms Hutcheson was referring to the sale of the structures, but the comment nevertheless signalled that the parties were not in agreement about the structures being characterised as a mobile home or manufactured home. This point was immediately recognised by the Original Tribunal. The Tribunal quotes the relevant sections of the transcript of this directions hearing at length as follows for the purposes of its consideration of this issue:

MS HUTCHESON: ...based on submissions we don't think it meets the definition of 'mobile home' or 'manufactured home' and, therefore, probably they do not have the right to an onsite sale, regardless of which I believe that the respondent ... does not have the funds to spend, or the time because she is constantly in hospital, to bring the premises up ... to standard within a shorter time frame because this has been going on for way too long already.

SENIOR MEMBER: Well, Ms Hutcheson, you raise an interesting question. The decision that I have made is a decision which was based on the premise, which appears to have been a mutually adopted premise, that the home meets the statutory definition at the time that the licence was issued. If, in fact, it does not then it seems to me that there may be some different issues involved here. ...

So ... is the South Canberra Holding's position that this is not a mobile home?

MS HUTCHESON: Can you just hold on a minute while I look at the decision.

SENIOR MEMBER: Mr Morris, what's your understanding?

MR MORRIS: Well, I confess, and I do apologise to the tribunal for not being better prepared, but I was not aware that this was a live issue. I think I'm potentially in the same position ... as the tribunal because it seems to be being raised for the first time today. If it is going to become a live issue then regrettably ... it might well be that this is a matter upon which further submissions need to be made. ....

SENIOR MEMBER: Well, leaving aside the question of sale, the question is whether this is, in fact, a mobile home, and now I appreciate that the services have been concreted in and so on, but that doesn't mean - that doesn't mean that it's not transportable. A transportable home is usually a home constructed on generally a steel structure which can be removed. So what's your understanding of the situation here?

MS HUTCHESON: Well, I think the annex part is - is not on any sort of ...(inaudible)... but I believe there's a shed down the side which - which is probably one-third of the structure on the site. That ...(inaudible)... doesn't move.

MS HUTCHESON: But the annex structure, which is about two-thirds of the structure

SENIOR MEMBER: So, hang on. ... I mean I have never seen a photograph of ... this dwelling. What does it actually comprise? What's the main dwelling.

MS HUTCHESON: The main dwelling, which is about a third of the structure, is I believe a site shed that has been converted into a living space.

SENIOR MEMBER: A site shed. ...[I]s that a transportable structure?

SENIOR MEMBER: All right, and then there is an annex which has been constructed?

SENIOR MEMBER: All right, ... that was, presumably, constructed and that's permanently affixed to the ground?

MS HUTCHESON: I believe it's fixed to concrete. We're happy for the definition of 'mobile home'. We just have doubts about the ... respondent's ability to ... bring this matter forward.

SENIOR MEMBER: Yes. Ms Hutcheson, I'm sure you are, but, at the moment, the issue that you raise raises a question of whether the decision that I made is one which has been founded on an incorrect presumption as to the facts and fundamental to that is the question of whether this is, in fact, an occupancy agreement. If it is not an occupancy agreement then it is an ordinary lease. It's no different to leasing a corner of a paddock. It's ... potentially something that would not come under the jurisdiction of the tribunal. .... I think what I'm going to do is I'm going to stand the matter over until 15 December. ...

SENIOR MEMBER: So what I'm proposing to do is to stand the matter over without directions until 15 December ... . I think what both parties need to do is consider the implications of whether this is or is not a mobile home, and if it is not, what the implications of that may be, and I'm not talking about the sale. I'm talking about whether this is, in fact, ... an occupancy agreement within the meaning of the legislation. ... [Y]ou have raised an issue which goes fundamentally to the basis of the decision which upheld the validity of the notice. [F]undamentally, the basis upon which I determined that a six-month notice period was a reasonable period of notice was that, firstly this was a right to occupy a site for the purposes of placing a removable structure on it, not a permanent structure, and that was also the basis upon which I determined that six months' notice was a reasonable notice period, and I'm now being told that a substantial part of the structure potentially is effectively a permanent erection or a permanent building erected on - on land, and a question may well arise whether that is an occupancy agreement or a lease.

[Y]ou have raised an issue which calls in to question the basis of the earlier decision, and what I propose to do is to stand the matter over until 15 December. I'm going to give both parties the opportunity to consider the matter discussed today and to propose a way forward on that date, and at that point I will decide whether ... there needs to be a further hearing in relation to the matter or whether ... the discretion should be exercised or whether something else should be done.

I will just make a note. The tribunal notes that in the interim the parties should consider whether the premises meet the definition of a mobile home, and if not, the implications for the future conduct of the matter.

Now, just so we're absolutely clear on ... what that means, .... if there is a contest about whether this is, in fact, a mobile home and there is a contest whether the decision that I made on the preliminary question, which clearly referred to that - that fact, but whether it was dependent upon that fact, ... then procedurally ... a question will arise as to how the matter can continue. .... A question would arise whether I would have power to set aside ... the decision that I ... made earlier or whether there needs to be an appeal or whether an order should be made by consent.[102]

1. The parties did not reach an agreement regarding the issue, and the appellant began agitating about the characterisation of the structures. This is confirmed by submissions filed by the appellant on 13 December 2021 which argued that the structure is not a mobile home, and the arrangements could not be an occupancy agreement. The respondent filed a witness statement by Mr Trayling which referred to the opposite proposition although it adopted the definitions in the New Legislation.[103] This was followed by the set-aside application on 13 January 2022 that was refused. The Original Tribunal's reasoning in refusing the set-aside application (as set out in the Final Decision) is discussed above.

Consideration of Ground 1(b) - whether there a was a bar to raising the jurisdictional issue

1. The Tribunal considers that the Original Tribunal erred by applying Metwally at first instance. The Tribunal recognises the argument made by the respondent that the conclusion arrived at by the Original Tribunal in the Interlocutory Decision that the NTV was valid was a final decision for that issue therefore, on the face of it, Metwally seems to apply. However, Metwally is distinguishable on its facts because that case considered a change of position by litigant at a very late stage of the proceedings after an appeal to the High Court had been heard. In Metwally the cornerstone of the argument presented originally by Mr Metwally was that the relevant legislation was valid. In the application that was the subject of the reported decision, he sought to vary the orders to argue for the invalidity of the relevant legislation. Importantly, the parties had earlier been given an opportunity to argue the invalidity of the relevant legislation but declined it.[104]
2. In the present case, the Tribunal agrees with the arguments made in the submissions on the appeal and the comments by Original Tribunal that there were many references to the term 'manufactured home' in the 13 May 2021 Written Outline and at various points during the directions hearings. The Tribunal also agrees that the use of this language by legal representatives for the appellant was "far from judicious in the circumstances."[105] Nevertheless, compared with Metwally, the change of position was much earlier in the proceedings and prior to the exercise of the discretion to make the termination and possession orders. The Tribunal notes the arguments made by the appellant that the term 'manufactured home' was not used in a technical sense by reference to the RT Act, but that is not clear on an objective reading of the relevant submissions. The Tribunal further notes that a confusion may have arisen as a consequence of the term not existing in the Old Legislation which was applied by the Original Tribunal after both parties had made submissions to the effect that the New Legislation applied. To repeat, the use of the term 'manufactured home' was not judicious. However, the Tribunal has concluded that it was not deliberate. No explicit concession was made by the appellant about the characterisation of the structure.[106]
3. The Tribunal agrees with the submissions made by the appellant that Verwayen is the relevant authority to apply because it is more analogous to the relevant phase of the proceedings at first instance. The Tribunal notes the arguments made by the appellant that the matter was still interlocutory and to the concept of there being an 'overarching' decision. The Tribunal is satisfied that the determination of the characterisation of the structures as a mobile home did have elements of finality for that issue. However, differentiating between the interlocutory and final stages of hearing is complex and is not necessary for the tribunal to decide this issue. Suffice it to say that the appellant cannot entirely rely upon the matter being interlocutory for that issue.
4. The proceedings had not concluded at the time the set-aside application was made. Therefore, the appropriate authority to apply at that point is Verwayen. To state the point again, Gaudron J noted that, "if a person fails to plead a matter, take an available objection or pursue a particular point of law, the matter proceeds on the basis that the point which might have been taken is not in issue. Were it otherwise the conduct of litigation would be unmanageable".[107] However, Gaudron J further reasoned that leave may be granted for the point to be raised notwithstanding the failure to take the point at the appropriate time and generally leave will be granted if the point can be raised without injustice to the other party. That question may depend on whether disadvantage to the other party can be avoided.[108] Her Honour contrasted the circumstance where a party deliberately chooses not to take point or fails to take point when it comes to notice. In both these circumstances, the court will adopt a more stringent attitude, treating the point as having been irrevocably abandoned. This leads to the analysis that a party who has failed to take the point is said to have waived it.[109]
5. The Tribunal notes the submissions made by the respondent that the appellant "deliberately chose" not to take a point, however, the Tribunal has concluded that the failure to take the point by the legal representatives for the appellant was not deliberate and perhaps more importantly, using the language of Gaudron J, they did not fail to take the point once it came to their notice. The long extract of the directions hearing of 3 December 2021 set out above demonstrates that the legal representative for the appellant responded quite quickly to the statements made by the respondent about the characterisation of the structure. The response seems to involve an element of surprise. Therefore, applying Verwayen leave could have been granted to take the point at the set aside application because the failure to take the point initially was not deliberate, and the appellant's legal representative acted upon the issue once it came to their attention. The issue could have been re‑ventilated without serious injustice to the respondent.
6. The respondent makes the very important point that the tribunal is entitled to rely upon the parties having narrowed the issues in dispute and the tribunal ought to then determine the balance of the issues in dispute within that agreed factual matrix. Gaudron J states that once a factual allegation is admitted by the other side, the tribunal does not need to satisfy itself of that fact. This leads to the question about the particular facts that were in contention in the present case, which takes the Tribunal to consider Ground 1(a).

Consideration of Ground 1(a) - The Original Tribunal was required to satisfy itself of the nature of the agreement - the jurisdictional issue

1. The Tribunal accepts the proposition made by the appellant that it was the respondent who first ventilated the question about the characterisation of the structure and therefore the parties could not be said to be in agreement regarding the factual premise that was relied upon by the Original Tribunal in concluding that the NTV was valid. The appellant urged the present Tribunal to conclude that the Original Tribunal had engaged in jurisdictional error by failing to take evidence about the characterisation of the structures.

• 76. It is clear from the transcript of the directions hearing of 3 December 2021 that some factual issues had arisen about the nature of the structure and whether the structure might be characterised as permanent rather than a 'mobile home'. Once the factual questions had arisen about the possible permanency of the structure, a frailty arose in the factual premise that was foundational to the Original Tribunal's exercise of jurisdiction under the RT Act in finding that the NTV was valid. The appellant has urged the Tribunal to treat this as a jurisdictional fact and to place a further obligation upon the tribunal to lead evidence about these so‑called 'jurisdictional facts'. This analysis might sound right because of the objectivity and essentiality of the facts involved[110] but it is unnecessarily prescriptive because it undermines the principle that the tribunal can rely upon facts agreed to by the parties without committing jurisdictional error.

1. The Tribunal prefers to adopt an analysis that is based upon the discretion that was exercisable by the Original Tribunal in the second stage of the proceedings, that is, the discretion to make the termination and possession orders. Given that the Original Tribunal already had some evidence (albeit informal) that the structure may have permanent features, a question arose about the validity of the NTV. When the question arose about the validity of the NTV, there was an infirm basis upon which the Original Tribunal could make a termination and possession order. In circumstances where the appellant argued consistently from the time that she discovered the error that the orders in the Interlocutory Decision should be set aside, the Original Tribunal should have enquired into the facts supporting the validity of the NTV.
2. The Tribunal considers that, at the time the set aside application was made, the appropriate course was to set aside the Interlocutory Decision pursuant to section 56(c)(iii) of the ACAT Act as constituting extraordinary circumstances. The Tribunal notes that the Original Tribunal did not consider that it amounted to extraordinary circumstances and the Tribunal recognises the importance of achieving finality in litigation. The Tribunal also notes that the Original Tribunal asked itself whether there had been a failure to observe the requirements of procedural fairness when the Senior Member applied section 56(c)(iii) of the ACAT Act. Clearly the issue goes further than procedural fairness due to the potential jurisdictional error and this was recognised by the Original Tribunal in the earlier discussions with the parties, particularly at the directions hearing dated 3 December 2021.

Ground 1(c) - Did the Original Tribunal ask itself the incorrect question about the validity of the NTV in the interlocutory proceedings?

1. Given that leave has been given to adduce further evidence about the characterisation of the structure, the Tribunal does not consider it necessary to respond to the appellant's argument about whether the Original Tribunal asked itself the incorrect questions about the validity of the NTV.

1. The Tribunal has concluded that the Original Tribunal made an error in exercising his discretion. The exercise of the discretion to make a termination and possession order was based upon an essential factual foundation which supported the validity of the NTV. That factual foundation had become contentious by the time the discretion was exercised. The refusal of the set-aside application and the exercise of the discretion was justified by Metwally, which is distinguishable. The Tribunal has therefore granted the parties leave to adduce further evidence about the characterisation of the structures and stands the matter over for directions regarding the further conduct of the matter.
2. The Tribunal notes that the decision of the Original Tribunal was an exercise of discretionary power. The appeal panel in Your Local Plumbing Group Pty Ltd v Hirsch[111] stated the approach to be adopted in this situation:

On appeal against a discretionary decision, the appeal tribunal should interfere only if the tribunal was clearly wrong. ... In Australian Coal and Shale Employees' Federation v Commonwealth, with reliance on earlier principles in House v The King,[112] the High Court commented on [the] principles to be applied where appellant jurisdiction is exercised in respect of decisions involving discretionary judgement. The Court said:

[T]here is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong.[113]

1. A differently constituted appeal panel stated the following in Ogilvie v Jemena Networks (ACT) Pty Ltd & Icon Distribution Investments Ltd T/A Evoenergy:

[T]here is a presumption in favour of the correctness of the decision appealed from, and the decision should be affirmed unless the Appeal Tribunal is satisfied that the decision is clearly wrong. It is not enough that the Appeal Tribunal consider that they would have exercised the discretionary power differently if they had comprised the Original Tribunal, or that they would prefer a different result from that favoured by the Original Tribunal. ... If the Appeal Tribunal is satisfied that there was an error, it may exercise its discretion in substitution for the decision of the Original Tribunal.[114]

1. In the current proceedings the Tribunal has concluded that the Original Tribunal's decision regarding Ground 1 was clearly wrong and has therefore exercised its discretion in substitution for the decision of the Original Tribunal.

[∗] The personal details in the orders have been anonymised for publication

[1] South Canberra Holdings Pty Ltd ACN 606 747 602 v Saunders [2021] ACAT 109

[2] South Canberra Holdings Pty Ltd ACN 606 747 602 v Saunders [2022] ACAT 15

[3] Appellant's submissions dated 21 February 2022 at [2]

[4] This notice is referred to in the parties' submissions in the appeal as 'NTV' and the Tribunal will adopt this terminology

[6] South Canberra Holdings Pty Ltd ACN 606 747 602 v Saunders [2022] ACAT 15 at [50]

[7] [2022] ACAT 70

[8] Zeng v Crane [2022] ACAT 70 at [27] citing Casino Canberra Limited 051 204 114 v Kidman [2022] ACAT 22 at [46]

[9] Zeng v Crane [2022] ACAT 70 at [28] citing among others The Owners - Units Plan no 1475 v Davidson [2022] ACAT 10 and Excel Intelligent Pty Ltd v Thomson [2018] ACAT 4

[10] Zeng v Crane [2022] ACAT 70 at [28] citing Ezekiel-Hart v Council of the Law Society of the Australian Capital Territory [2021] ACAT 116

[11] Appellant's submissions dated 21 February 2022 at [6]

[12] South Canberra Holdings Pty Ltd ACN 606 747 602 v Saunders [2021] ACAT 109 at [3]

[13] Respondent's submissions filed 14 March 2022 at [13]

[14] South Canberra Holdings Pty Ltd ACN 606 747 602 v Saunders [2021] ACAT 109

[15] South Canberra Holdings Pty Ltd ACN 606 747 602 v Saunders [2021] ACAT 109 at [78]

[16] South Canberra Holdings Pty Ltd ACN 606 747 602 v Saunders [2021] ACAT 109 at [78]

[17] Transcript of proceedings 3 December 2021, page 5

[18] Transcript of proceedings 3 December 2021, page 6

[19] Appellant's submissions dated 21 February 2022 at [14]

[20] Respondent's submissions dated 14 March 2022 at [17]

[21] Transcript of proceedings 15 December 2021, page 18

[22] Transcript of proceedings 15 December 2021, page 21

[23] South Canberra Holdings Pty Ltd ACN 606 747 602 v Saunders [2022] ACAT 15 at [5]

[24] South Canberra Holdings Pty Ltd ACN 606 747 602 v Saunders [2022] ACAT 15 at [5]

[25] South Canberra Holdings Pty Ltd ACN 606 747 602 v Saunders [2022] ACAT 15 at [5]

[26] [2021] ACAT 104 at [73]

[27] [2002] HCA 11 at [51]

[28] South Canberra Holdings Pty Ltd ACN 606 747 602 v Saunders [2022] ACAT 15 at [19]- [37]

[29] South Canberra Holdings Pty Ltd ACN 606 747 602 v Saunders [2022] ACAT 15 at [38]

[30] South Canberra Holdings Pty Ltd ACN 606 747 602 v Saunders [2022] ACAT 15 at [41]

[31] South Canberra Holdings Pty Ltd ACN 606 747 602 v Saunders [2022] ACAT 15 at [41]- [42] citing transcript of proceedings 13 January 2022, page 17

[32] South Canberra Holdings Pty Ltd ACN 606 747 602 v Saunders [2022] ACAT 15 at [48]

[34] Metwally v University of Wollongong [1985] HCA 28 at [7] cited by South Canberra Holdings Pty Ltd ACN 606 747 602 v Saunders [2022] ACAT 15 at [49]

[35] Appellant's submissions dated 21 February 2022 at [19]

[36] Appellant's submissions dated 21 February 2022 at [19] citing Australian Education Union v Lawler [2008] FCAFC 135 at [184]- [185], Minister for Immigration and Ethnic Affairs v Polat [1995] FCA 1204; [1995] 57 FCR 98 at [105-107], Wu v Minister for Immigration and Ethnic Affairs [1996] 64 FCR 245 at [262] and Formosa v Secretary, Department of Social Security [1988] FCA 291; [1988] 46 FCR 117

[37] [2012] ACAT 25

[38] Appellant's submissions dated 21 February 2022 at [22]

[39] Appellant's submissions dated 21 February 2022 at [23]

[40] Appellant's submissions dated 21 February 2022 at [23]

[41] Transcript of proceedings 20 May 2022, page 15

[42] Appellant's submissions dated 21 February 2022 at [24]

[43] Appellant's submissions dated 21 February 2022 at [25]

[44] Transcript of proceedings 20 May 2022, page 7

[45] [2008] FCAFC 135 at [184]- [185]

[46] [1995] FCA 1204; [1995] 57 FCR 98 at [105]- [107]

[47] Transcript of proceedings 20 May 2022, page 7

[48] Appellant's submissions dated 21 February 2022 at [30]

[49] Transcript of proceedings 3 December 2021, page 5, line 29

[50] Appellant's submissions dated 21 February 2022 at [32]

[51] Transcript of proceedings 13 January 2022, pages 16-17

[52] Transcript of proceedings 20 May 2022, page 8

[53] Appellant's submissions dated 21 February 2022 at [43]

[54] Appellant's submissions dated 21 February 2022 at [40]

[55] Transcript of proceedings 20 May 2022, page 12

[57] Appellant's submissions dated 21 February 2022 at [41] and transcript of proceedings 20 May 2022, page 12

[58] Commonwealth v Verwayen (1990) 170 CLR 394 at [482]

[59] Appellant's submissions dated 21 February 2022 at [40]

[60] Appellant's submissions dated 21 February 2022 at [42]

[61] Appellant's submissions dated 21 February 2022 at [43]

[62] Appellant's submissions dated 21 February 2022 at [43]

[63] Appellant's submissions dated 21 February 2022 at [44]

[64] Appellant's submissions dated 21 February 2022 at [45]

[65] Respondent's submissions dated 14 March 2022 at [3]

[66] Respondent's submissions dated 14 March 2022 at [3] citing Brambles Industries Ltd v Bell [2010] NSWCA 162; Watson v Qantas Airways Ltd (2009) 75 NSWLR 539 at [13]; Republic of Croatia v Snedden [2010] HCA 14; (2010) 84 ALJR 334 at [88]

[67] Respondent's submissions dated 14 March 2022 at [12]

[68] Applicant's written outline dated 13 May 2021 at [1]

[69] Respondent's submissions dated 14 March 2022 at [7]

[70] Respondent's submissions dated 14 March 2022 at [13]

[71] Respondent's submissions dated 14 March 2022 at [13]

[72] Appellant's reply filed 22 March 2022 at [9]

[73] Transcript of proceedings 20 May 2022, page 21

[74] Transcript of proceedings 20 May 2022, page 19

[75] Respondent's submissions dated 14 March 2022 at [20] citing transcript of proceedings 13 January 2022, page 16

[76] Respondent's submissions dated 14 March 2022 at [21]

[77] Respondent's submissions dated 14 March 2022 at [28]

[78] Respondent's submissions dated 14 March 2022 at [28]

[79] Respondent's submissions dated 14 March 2022 at [30]

[80] Respondent's submissions dated 14 March 2022 at [32]

[81] Brambles Industries Ltd v Bell [2010] NSWCA 162; Watson v Qantas Airways Ltd (2009) 75 NSWLR 539 at [13]; Republic of Croatia v Snedden [2010] HCA 14; (2010) 84 ALJR 334 at [88]

[82] Transcript of proceedings 20 May 2022, pages 23, 25

[83] Respondent's dated submissions 14 March 2022 at [33]

[84] Transcript of proceedings 20 May 2022, page 6

[85] Appellant's submissions dated 21 February 2022 at [39] cited by respondent's submissions dated 14 March 2022 at [34]

[86] Transcript of proceedings 20 May 2022, page 22

[87] Respondent's submissions dated 14 March 2022 at [35

[88] Respondent's submissions dated 14 March 2022 at [35] citing Metwally at [7]

[89] Respondent's submissions dated 14 March 2022 at [35]

[90] Commonwealth v Verwayen (1990) 170 CLR 394, 482

[91] Respondent's submissions dated 14 March 2022 at [37]

[92] Respondent's submissions dated 14 March 2022 at [37]

[93] Respondent's submissions dated 14 March 2022 at [37]

[94] Respondent's submissions dated 14 March 2022 at [37], citing ACAT Act, section 7(a)

[95] Appellant's reply filed 22 March 2022 at [2]

[96] Appellant's reply filed 22 March 2022 at [9]

[97] Appellant's reply filed 22 March 2022 at [9]

[98] Transcript of proceedings 20 May 2022, page 32

[99] Transcript of proceedings 20 May 2022, page 13

[100] Transcript of proceedings 20 May 2022, pages 29, 32

[101] Transcript of proceedings 20 May 2022, page 29

[102] Transcript of proceedings 3 December 2021, pages 5-11

[103] Witness statement Kevin Trayling dated 12 December 2021

[104] Metwally v University of Wollongong [1985] HCA 28 at [5]

[105] Appellant's reply filed 22 March 2022 at [9]

[106] Contra respondent's submissions dated 14 March 2022 at [13]

[107] Commonwealth v Verwayen (1990) 170 CLR 394, 482

[108] Commonwealth v Verwayen (1990) 170 CLR 394, 482

[109] Commonwealth v Verwayen (1990) 170 CLR 394, 482

[110] See for example Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55 at 64 per Spigelman J, cited by MJ Leeming, Authority to Decide: The Law of Jurisdiction in Australia (The Federation Press, Second edition., 2020), page 69 and Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (Lawbook Co., Sixth edition., 2017), page 244

[111] [2022] ACAT 83 at [106]

[112] (1936) 55 CLR 499

[113] Australian Coal and Shale Employees' Federation v Commonwealth [1953] HCA 25; (1953) 94 CLR 621 at 627

[114] [2023] ACAT 20 at [28] (footnotes omitted)