Shojai v INA Operations Pty Ltd ATF INA Operations Trust #6

NCAT Appeal Panel|2023-10-24|Before: Bell P, Ward JA, Wright J

Summary

Since the decision of the Court of Appeal in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 (per Bell P (as the Chief Justice then was) at [53] - [54] and Ward JA (as the President then was) at [109] - [113]), some doubt has attended the question of whether this Tribunal is obliged to give reasons for its decisions in the absence of a written request made under s 62 of the Civil and Administrative Tribunal Act 2013 (NSW)('NCAT Act'). An argument in support of such an obligation was recently raised, but not determined, by Wright J in Nu-Stone Building Pty Ltd v McInerney [2023] NSWSC 940 at [54] - [58]. Furthermore, recent legislative amendment of the NCAT Act makes it plain that written reasons are not required for some decisions made by the Tribunal in any event: see the recent insertion of s 62(2A) that commenced on 20 September 2023.
However, what is clear is that the Tribunal, when requested to do so in writing within 28 days from making a decision, has a positive duty to give written reasons for its decisions in contested proceedings that have a final or determinative impact on the rights of a party, other than in respect of some costs decisions. Those reasons are to be provided within 28 days of such a request: NCAT Act, s 62. The reasons must address: 1. the findings on material questions of fact, referring to the evidence or other material on which those findings were based; 2. the Tribunal's understanding of the applicable law; and 3. the reasoning processes that lead the Tribunal to the conclusions it made.
In that context, the history regarding the provision of the late and insufficient reasons in this proceedings, wherein the appellant had his right to occupy a site in the respondent's residential community terminated, is most unfortunate. The Tribunal also erred in the amount of arrears of site fees it ordered the appellant to pay the respondent by a significant sum. As a result, and to protect the appellant, we announced our orders on 24 October 2023 and indicated we would provide written reasons, which are set out below. We decided to grant leave and allow the appeal in part and redetermined that aspect of the proceedings.

Background

The appellant let a site from the respondent in a community regulated by the Residential (Land Lease) Communities Act 2013 (NSW) ('RLLC Act').
From at least November 2020, he had fallen significantly into arrears, leading to the Tribunal making an order for the payment of $9,912.00 for outstanding site fees (described as rent) on 27 November 2020.
The appellant did not comply with that order and paid no further site fees.
As a result, in July 2023, the respondent brought proceedings in the Consumer and Commercial Division seeking termination of the site agreement and possession; and the outstanding site fees which it claimed in the sum of $41,985.31.
On 9 August 2023, after a hearing attended by both parties, the Tribunal made the decision that is the subject of this appeal. In sum, the Tribunal terminated the site agreement with a delayed date for possession of 16 August 2023. ('Order 1') and ordered the appellant to pay the respondent the sum of $41,985.31 for outstanding site fees ('Order 2'). No reasons were given by the Tribunal.
On lodgement of the appeal, and at a directions hearing on 25 August 2023, the Appeal Panel made directions to prepare the appeal for hearing. That included directing the respondent to seek written reasons for the decision by 5pm that day. A hearing of the appeal was scheduled on 4 October 2023. Longer than usual time for the parties to lodge and serve their material was allowed to provide time for the written reasons to be produced and released to the parties.
Despite the respondent complying with the direction to make a request for reasons, none were provided by the Tribunal by 4 October 2023 meaning that the hearing of the appeal needed to be vacated and an extension of time provided for the parties to lodge and serve their material.
In the end, the Tribunal's reasons were only released to the parties on 23 October 2023, i.e. the day prior to the revised hearing date of the appeal and some 36 days beyond the time provided for in s 62 of the NCAT Act. In the meantime, the appellant has lodged nothing probative in support of his appeal in accordance with the directions made.

Tribunal's reasons for decision

The Tribunal's reasons are brief enough to be reproduced in full: "1 This was a claim by the operator of a park under the Residential (Land Lease) Communities Act 2013 (NSW) for vacant possession and payment of rent arrears. Parties: 2 The applicant was the owner and operator of the community park located at Dural. At the hearing the applicant was represented by Mr Watson. 3 The respondent being the occupier and tenant was present in person at the hearing. Evidence: 4 The applicant's evidence was attached to the application and had been served on the respondent. It contained copious historical material, copies of correspondence, photos, a copy of the tenancy agreement and the termination notice, copies of the ledger, a chronology and other documents. Hearing: 5 The application was filed on 6 July 2023. It was listed on 9th August at Parramatta. Both parties were in attendance. The applicant was seeking vacant possession and alleged, supported by the copy of the ledger, that over $40,000 was owing for unpaid rent. The applicant also asserted, supported by circumstantial evidence, that the respondent was not in residence on the site and had not been for some time. 6 The resident did not challenge the formalities relating to the application such as, the validity of the notice technicalities as to service and the like. Similarly, he did not deny that many thousands of dollars was owing although he would not agree to the precise dollar amount set out in the ledger. Neither did he offer any contention as to what the true figure might be. The ledger appearing to be a formal and properly kept financial record, I took the view that I should accept it as prima facie correct as to the amount of unpaid rent. It was not clear to me what the monetary jurisdiction in residential communities claims was and I went off the bench to make enquiries and seek assistance from senior colleagues. My enquiries suggested that there was no upper limit to monetary jurisdiction and so an order could be made for the whole of the outstanding amount. The chief concern of the respondent at the hearing was that he wanted a (sic) opportunity to dispose of the site and the dwelling resting upon it. Adjudication: I took the view that with such a large amount outstanding and with the respondent failing to take any steps to meet his obligations for so long, that it would not be fair and just to the park proprietor to make any order short of termination. It appeared likely that the applicant would never be paid the arrears owed and so to delay the inevitable order of termination and possession would only result in further loss to the applicant with no possibility of immediate benefit to the respondent."
The Tribunal's reasons do not need to be elaborate (Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 433) and the extent and content of the reasons will depend on the matters in issue: Hull v Thompson [2001] NSWCA 359 at [53]) per Rolfe AJA (Sheller JA and Davies AJA agreeing). Allowance must also be made for the volume of proceedings of this nature in the Consumer and Commercial Division and the pressure it is under as a consequence (Orr per Ward JA (as the President then was) at [11]). Even a generously beneficial reading of these reasons, though, cannot overcome the obvious lack of reference by the Tribunal to its understanding of the applicable law and these reasons do not attract such a beneficial approach where the Tribunal spent two months preparing them.

Scope and nature of internal appeals

Notwithstanding that, the appellant does not seek to identify error in the Tribunal's decision in his Notice of Appeal. Rather, he makes various assertions as to his need to retain the benefit of the site agreement due to his personal circumstances. He also makes various unsupported assertions as to his plans to pay the outstanding site fees.
An appeal to the Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. To succeed in an appeal, the appellant must demonstrate either an error on a question of law, which, except in an appeal from an interlocutory decision, may be argued as of right; or that permission (that is, "leave") to appeal should be granted to bring the appeal: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2).
The principles governing an application for leave to appeal under the NCAT Act are well-established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17. They are the same principles applied by the courts. It is enough as a summary to refer to Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206, where the Court said at [28] (citations omitted): Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong.
Further, as Basten JA said (White JA agreeing) in Hungry Jack's Pty Ltd v Fourtounas [2020] NSWCA 325 at [9], cited with approval in Amirbeaggi v Matrix Group Co Pty Ltd [2021] NSWCA 21: ... more is required than identification of error on the part of the trial judge, even if it can be said that the error is reasonably clear. Generally, the court will also need to be satisfied that there is a matter of some public importance engaged and that the costs of further litigation are not disproportionate to the amount in issue. Further, it should be established that, to leave any putative error uncorrected, would give rise to a substantial miscarriage of justice.
Where the appeal is from a decision made in the Consumer and Commercial Division (other than in respect of interlocutory decisions), there is a further qualification to the possible grant of leave in that we may go on to consider a grant of leave in the broader sense only if we are first satisfied that the elements of cl 12(1) of Sch 4 to the NCAT Act are made out, in that the appellant may have suffered a substantial miscarriage of justice on the basis that: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
We agree with the Appeal Panel in Collins v Urban where it said, at [76], that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act may have been suffered where: ... [T]here was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance."
We may decide to conduct a new hearing if we are satisfied that the grounds for appeal warrant it: NCAT Act, s 80(3)(a). A new hearing under s 80(3) of the NCAT Act is a hearing de novo, or "from the beginning": Yuen v Thom [2016] NSWCATAP 243 at [17].

An adjournment application

At 4.14pm on the day prior to the hearing, the appellant made an informal application by email for an adjournment of the hearing of the appeal. Importantly, the basis for the adjournment sought was not the late receipt of the Tribunal's reasons, or for more time to lodge material in support of the appeal, but an allegation that the appellant had experienced depression and stress arising from the termination of the site agreement. He alleged, without evidence, that he has a "medical condition called Flight of idea" which makes him forget to do things. Having decided he needs some support for that condition, the appellant had apparently sought psychological help. He alleged he had visited a psychologist for treatment "a few times". In support of his position, he attached what appeared to be an automated online booking form to a psychology practice for three visits commencing on 26 September 2023. No report arising from those consultations, if they occurred, was provided.
The parties were advised the application for an adjournment would be considered at the commencement of the hearing of the appeal at 2.15pm on 24 October 2023.
At 11.57am on 24 October 2023, the appellant sent a further email seeking "a new hearing to change the orders" and alleging, again, that the amount of the site fees ordered to be paid was wrong and the correct amount was "ten times less than" that which was ordered.
At the hearing, the appellant did not appear. Nor was there any explanation for that want of appearance. Notwithstanding that, we considered the adjournment application on its merits. An adjournment was opposed by the Respondent.
Whilst the Tribunal has a broad discretion to adjourn proceedings under s 51 of the NCAT Act, we were not satisfied that there was any proper basis on which to adjourn the appeal. The appellant has known of the date for the hearing for some time and he has not indicated an inability to attend to argue for his adjournment today. Nor is the material he lodged in support of the application, in the form of appointment confirmation notes for psychology appointments, probative as to the need for the proceedings to be adjourned. Having been given an extensive opportunity to produce evidence to dispute the respondent's rental ledger and make good his claims that it is incorrect, the appellant has not done so. Matters should generally proceed on the date fixed for hearing (O'Neill v T and I Engines Pty Ltd [2015] NSWCATAP 77 at [22]) and there is a "heavy burden" of vacating the hearing date shortly before the hearing: Penson v Titan National Pty Ltd [2015] NSWCA 382 at [8].
We were satisfied we should proceed to consider the appeal on its merits.

Order 2- the money order

In doing so, we discovered that whilst the Tribunal had jurisdiction, and power to make this order under s 157(1)(d) of the RLLC Act, the Tribunal was in error in its finding as to the site fees outstanding when it made Order 2 on 9 August 2023. The Tribunal failed to recognise that the respondent's right to claim the site fees outstanding as at 27 November 2020, in the sum of $9,912.00, had merged into the decision and order made on that date by the Tribunal. The 'rental' ledger relied upon at the hearing on 9 August 2023, which was before us, did not credit the benefit of that order to the appellant's outstanding site fees. As a result, the combined effect of the Tribunal's two orders was that the respondent could collect the outstanding site fees to 27 November 2020 twice. That is an injustice that is clear, warranting a grant of leave to appeal in respect of this issue, which the respondent properly acknowledged. It did not oppose us granting leave on this issue and making an order to rectify that situation. We did so.

Order 1 - the order for termination and possession

In Beale, Meagher JA said at 444: It does not automatically follow that because reasons for decision are inadequate then an appealable error has occurred. Examination of nearly any statement of reasons with a fine-tooth comb would throw up some inadequacies. Indeed, an appeal court will reserve intervention to those situations in which it is left with no choice: where no reasons have been given in circumstances where there is an obligation to provide them and in circumstances where a statement of reasons is so inadequate as to constitute a miscarriage of justice. In other words, the statement of reasons must be looked at as a whole and the material inadequacies identified and considered. … Lastly, it is noted that an appealable error arising from inadequate reasons does not necessarily mean that a new trial is required. An appeal court is entitled to consider the matter and, if appropriate reasons are given, may itself decide the matter. Thus, if the only conclusion open on the evidence available at trial was the conclusion reached by the trial judge, then, notwithstanding an inadequate statement of reasons, the matter need not go to a new trial: NSW Insurance Ministerial Corporation (formerly GIO of New South Wales) v Mesiti (Court of Appeal, 1 December 1994, unreported).
In respect of this order, whilst the Tribunal's reasons were inadequate in failing to address its understanding of the law to be applied, that was not a complaint even incidentally raised by the appellant.
It is also the case that the Tribunal had jurisdiction to determine the proceedings between the parties where they had entered into a site agreement to which the Act applies in accordance with s 6 of the RLLC Act, and power to terminate the site agreement and order possession. Sections 122, 130 and 131 of the RLLC provide: 122 Termination by operator for breach of agreement (1) The operator of a community may give a termination notice on the ground that the home owner has seriously or persistently breached the site agreement. (2) The termination notice must not specify a date for vacating the residential site that is earlier than 90 days after the day on which the notice is given. (3) The termination notice may specify a date for vacating the residential site that is before the end of the fixed term of the site agreement if it is a fixed term agreement. (4) For the purposes of this section, the home owner is not in breach of the site agreement for non-payment of a site fee unless the fee has remained unpaid for at least 30 days. (5) The Tribunal may make a termination order if it is satisfied that - (a) a termination notice was given under this section and the home owner has not vacated the residential site as required by the notice, and (b) the home owner has breached the site agreement, and (c) the breach is, in the circumstances of the case, sufficient to justify termination of the agreement. (6) In considering the circumstances of the case, the Tribunal may consider (but is not limited to considering) the following - (a) the nature of the breach, (b) any previous breaches, (c) any steps taken by the home owner to remedy the breach, (d) any steps taken by the operator of the community about the breach, (e) the previous history of the home owner's occupation of the residential site. (7) The Tribunal may refuse to make the termination order if it is satisfied that the home owner has remedied the breach. … 130 Termination orders (1) The Tribunal may, on application by the operator of a community, make a termination order in accordance with this Division. (2) A termination order may be made either - (a) if vacant possession of a residential site is not given by the specified date as required by a termination notice, or (b) if an application for the order can be made under this Part without the need for a termination notice. 131 Possession orders (1) If the Tribunal makes a termination order, it must also make an order for possession of the residential site (a possession order) specifying the day on which the possession order takes or took effect. (2) The Tribunal may suspend the operation of a possession order if it is satisfied that it is desirable to do so, having regard to the relative hardship likely to be caused to the operator and home owner by the suspension.
Therefore, whilst the Tribunal may have failed to advert to its jurisdiction and power to make the order in its reasons, it certainly had jurisdiction and power to make the order where the prerequisite circumstances in s 122(5) are established. Further, the Tribunal exercises a broad discretion in respect of making a termination order save that, as in all such decisions, it must act on principled grounds taking all relevant and no irrelevant considerations into account. In respect of the determination of an appropriate date for possession, the Tribunal makes a broad evaluative judgment, about which reasonable minds may differ. We should exercise restraint in reviewing such decisions: Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40.
On the uncontradicted evidence before us, and which was before the Tribunal on 9 August 2023, it is clear that: 1. The appellant is significantly behind in his site fees, to the extent of over $30,000 as at 9 August 2023; 2. He has remained in arrears over several years; 3. That is a breach of the agreement that was sufficient to justify its termination; 4. A valid termination notice was given, and the appellant had not vacated the residential site as required by the notice; 5. There is nothing to establish that the appellant has any real prospects of remedying the situation; 6. Whilst there is undoubted prejudice to the appellant in losing the benefit of the site agreement, that prejudice is now outweighed by the significant prejudice to the respondent that has been occasioned by the loss of income from the site over that period; 7. The requirements of s 122(5) are made out and the only reasonable exercise of discretion in respect of the Tribunal's power would be to terminate the site agreement; and 8. Having regard to the lengthy delay in resolution of the matter, no further time for delayed possession is warranted, considering the relative hardship likely to be caused to the respondent. In that regard, it is now over six weeks since the order was made and a warrant for possession has been executed.
As a result, whilst the reasons are inadequate to meet the requirements of s 62 of the NCAT Act they are not so inadequate as to constitute a miscarriage of justice.
Despite the inadequacy of the Tribunal's reasons, we will not exercise our discretion to grant leave to appeal from Order 1 because the only conclusion open on the evidence available at the hearing was the conclusion reached by the Tribunal. There is no error that would give rise to a substantial miscarriage of justice. To the extent that there is a question of law to be determined in whether the reasons were inadequate, despite that not being raised by the appellant, we would not grant relief in any event for the reasons given.

Orders

Our Orders were as follows: 1. The Appellant's application for an adjournment is refused. 2. Grant leave to the Appellant to challenge order 2 made on 9 August 2023 in proceedings RC 23/30284. 3. Vary order 2 made on 9 August 2023 in proceedings RC 23/30284. The order is now "The Respondent, Gulam Shojai, is to pay the Applicant the sum of $32,072.35, immediately." 4. Leave to appeal is otherwise refused. 5. The appeal is otherwise 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

Amendments 24 November 2023 - $ in front of the amount in order 3 on the coversheet and original order.

Paragraph [1] line 4 changed from White J to Wright J 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: 24 November 2023

At a glance

Court

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Judgment (11 paragraphs)

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Legislation Cited (2)

Cases Cited (14)

Cited By (2)