This is an appeal brought by the appellant from a decision given by the Tribunal declaring that a proposed increase in site fees sought by the appellant for a residential community at Tweed Heads in NSW was excessive, ordering that the site fees be increased by 2% (and no more) up to 17 November 2019, that that order apply to all affected home owners in the community other than those that opted out and various consequential orders.
For the reasons that follow we are of the opinion that leave to appeal should be refused and the appeal should be dismissed.
[2]
Background
The appellant is the operator [as defined in s 4 of the Residential (Land Lease) Communities Act 2013 (NSW) (the "Act")] of a residential community (as defined in the Act) at Tweed Heads, NSW.
The respondent owns a home (as defined in the Act) situated on a residential site in that residential community. He has a site agreement with the appellant and is a home owner as defined in the Act.
The Act contains various provisions relating to proposed increases in site fees charged by operators to home owners with whom they have site agreements.
One provision is s 67 which requires that notice of any proposed increase in site fees must be given to the people and in the manner set out in the section. The appellant gave a notice to the respondent which complied with s 67.
Sunrise Property Holdings Pty Ltd v Gregg [2019] NSWCATAP 253 | Case summary | Zoe
The respondent, and a number of other home owners who received a similar notice, objected to the proposed increase in site fees.
The Act contains provisions by which the Tribunal, on application being made to it, may declare proposed increases in site fees to be excessive and certain other orders.
Home owners objecting to proposed site fee increases may make application to the Tribunal for one or more orders under s 73 of the Act under 71 or s 72 of the Act, or both.
Section 73 says:
73 Orders as to excessive increases in site fees
(1) The Tribunal may, on application under section 71 or 72, make any of the following orders:
(a) an order declaring that an increase in site fees is excessive,
(b) an order reducing the amount of the increase by a specified amount,
(c) an order setting aside the increase,
(d) an order that the site fees must not exceed a specified amount or specified amounts, either:
(i) from a specified day, not being earlier than the day from which the increased site fees were payable, or
(ii) during a specified period,
(e) an order confirming the increase on the conditions (if any) that the Tribunal considers appropriate,
(f) any ancillary order that the Tribunal, in the circumstances, thinks appropriate.
(2) The Tribunal may make orders applying to individual participating home owners, groups of participating home owners or all participating home owners.
(3) An order applies to all affected home owners in the community (other than those who opt out), unless the Tribunal is satisfied there is a strong reason for making separate orders for different home owners or groups of home owners.
(4) The Tribunal cannot make an order that would result in an increase lower than that needed to cover any actual or projected increase (established to the satisfaction of the Tribunal) in the outgoings and operating expenses for the community since the previous increase (if any) in site fees for the community.
Section 73(3) provides that an order applies to all affected home owners in the community other than owners who opt out unless the Tribunal is satisfied there is a strong reason for making separate orders.
When dealing with an application made under s 73 the Tribunal may take into consideration the matters set out in s 74. Section 74 says:
74 Matters to be considered about excessive increases
(1) The Tribunal may have regard to any or all of the following factors when deciding whether to make an order under section 73:
(a) the frequency and amount of past increases in site fees for the community,
(b) any actual or projected increase in the outgoings and operating expenses for the community as provided by the operator since the previous increase (if any) in site fees for the community,
(c) any repairs or improvements to the community:
(i) carried out by the operator since the previous increase (if any), or
(ii) planned by the operator for the period covered by the increase being reviewed,
(d) the general condition of the community including its common areas,
(e) the range and average level of site fees within the community,
(f) the value of the land comprising the community, as determined by the Valuer-General,
(g) the value of any improvements to the community (including common areas) paid for or carried out by home owners,
(h) any explanation for the increase provided by the operator by notice in writing to the affected home owners,
(i) variations in the Consumer Price Index (All Groups Index) for Sydney,
(j) whether the increase is fair and equitable in the operation of the community,
(k) any other matters prescribed by the regulations.
(2) The regulations may require the Tribunal to disregard any specified matters (not being a matter referred to in subsection (1)), in any specified circumstances, when deciding whether to make an order under section 73.
The Tribunal below considered each of the matters set out in s 74(1)(a) - (j) and set out its findings in relation to each subsection in its reasons. There were no other matters prescribed by the regulations to be considered pursuant to s 74(1)(k).
Having considered all of those matters the Tribunal said it was satisfied that the proposed increase in site fees (of about 5.32% per residential site per week) was excessive, but an increase of 2% per residential site per week [being the Consumer Price Index (Sydney) quarterly increase for September 2018] was appropriate.
The Tribunal therefore declared that the proposed increase in site fees was excessive, that site fees should increase by 2%, that site fees not increase further before 17 November 2019 and that the orders apply to all affected home owners other that those that chose to opt out.
[3]
Grounds of Appeal
The appellant relies upon one Ground of Appeal, namely that the decision of the Tribunal was not fair and equitable.
This ground is found in cl 12(1)(a) of Schedule 4 of the Civil and Administrative Tribunal Act 2013 (NSW) (the "NCAT Act").
Clause 12(1)(a) says:
12 Limitations on internal appeals against Division decisions
(1) An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because:
(a) the decision of the Tribunal under appeal was not fair and equitable,
(b) ...
(c) ...
The significance of this is that the "fair and equitable" ground (as we shall call it here) does not (in this context) raise a question of law.
The consequence of that is that the appellant must seek leave (or permission) to appeal on the fair and equitable ground because it is only when an appeal raises a question of law that it has a right to appeal - see s 80(2)(b) of the NCAT Act.
The tests to apply to the question whether leave to appeal on the fair and equitable ground should be granted are well known and are set out in Collins v Urban [2014] NSWCATAP 17.
In basic terms, a party such as the appellant in this case, must satisfy an Appeal Panel that it may have suffered a substantial injustice because the decision below was not fair and equitable. If a party meets that criterion, it must then persuade the Appeal Panel to exercise its discretion to grant leave to appeal.
A substantial miscarriage of justice was explained in Collins at [71] as:
"... the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred."
There are different ways in which matters can be conducted or decided and which can be seen to have deprived an appellant of a chance, which was fairly open, of achieving a better outcome.
In the present case, the appellant says, in substance, that it suffered a substantial miscarriage of justice in the way the case was conducted and decided in that:
1. the Tribunal's rejection of its evidence of an increase in wages and superannuation expenses, being a two-page document by the appellant's accountant setting out gross totals for ten expenses (net of GST) for two time periods (17 November 2016 - 16 November 2017, and the same period for 2017/18), but without any supporting documentation, was unfair as the appellant had supporting documentation with it but did not wish to tender it (and provide copies to the respondent) because it did not want to have payroll information provided to the respondent.
2. The finding that the pool was enjoyed by tourists as well as home owners, that home owners were mostly elderly and used the pool far less frequently than the tourists, was not fair and equitable because:
1. it has (anonymous) letters from two residents who are elderly and use the pool with other residents;
2. although the Tribunal apportioned pool renovation costs equally between residents and tourists, there was "no indication as to what portion should be considered resident costs";
3. the pool is a selling point for resident s when selling their homes;
4. the appellant believes that if the pool closed, residents would expect a reduction in their rent;
5. the appellant now wishes to tender documents not tendered to the Tribunal below such as a quote for pool repair and various other documents relating to the costs of maintenance of the pool
1. The Tribunal was given incorrect information regarding the number of home owners "which escalated the number of tourist sites". The increase in operating expenses was apportioned 1/197 per site.
2. The appellant says that two thirds of the residents agreed to the increase in site fees, and the Tribunal erred in dismissing this fact because evidence had not been provided to prove it. The appellant wishes to prove that fact by tendering documents on the appeal.
[4]
Decision
We are not satisfied the appellant may have suffered a substantial miscarriage of justice as the appellant has submitted.
All of the evidence the appellant now seeks to tender was reasonably available to it at the time and thus is not admissible - see cl 12(1)(c) of Schedule 4 of the NCAT Act.
The appellant chose not to tender various documents for various reasons. It is bound by that choice. The Tribunal was unpersuaded by a two-page document from the appellant's accountant unsupported by any corroborative, supportive documentation. All such documentation was in the possession of the appellant, and if it chooses not to supply proof of matters upon which it wished to rely then it cannot now complain that the Tribunal erred.
The appellant complains it was not asked to tender some of that material, but there is no error in the Tribunal not making that request. The Tribunal was the independent umpire appointed to hear the dispute, and although the Tribunal may inquire into and inform itself on any matter in such manner as it thinks fit, that power is subject to the rules of natural justice - see s 38(2) of the NCAT Act). It is not for the Tribunal to, as the appellant really submits, run the case for the appellant. It is for the appellant to prepare its case and its evidence, and to suffer the consequences if it chooses not to prove facts important to its case.
As for the assertion the Tribunal was given incorrect information about the number of home owners "which escalated the number of tourist sites", the appellant was present at the hearing and had the opportunity to contest that evidence if it so chose. In any event, it does not appear the Tribunal was misled (in any material way) given it found that each of the home owners affected by the proposed site increase each bore 1/198 of the operating costs whilst the appellant now submits that the increase in operating expenses was apportioned 1/197 per site.
In relation to the pool, the appellant sought to apportion pool costs equally between residents and tourists. As such, the appellant bore the onus of proving that fact as it was the party seeking the increase. It was not for the residents to prove otherwise. The general maxim that "he who asserts must prove" applies in this case.
The remaining matters identified by the appellant are not relevant and are no indication that the appellant may have suffered a substantial miscarriage of justice.
If we are wrong about that, and the appellant did (or may have) suffered a substantial miscarriage of justice, we would not have exercised our discretion to grant leave to appeal.
The usual type of case in which leave to appeal is granted is where there is an issue of principle, a question of public importance, an injustice that is reasonable clear, a factual error that was unreasonably arrive at and was clearly mistaken or the Tribunal had gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result - see Collins at [84]. In our opinion none of those circumstances exist in the present case.
There may be other circumstances in which it may be appropriate to grant leave to appeal, but none were identified by the appellant and none are apparent to us from any of the material.
In substance, this appeal was conducted by the appellant as a re-arguing of the case it put before the Tribunal below. An internal appeal under s 80 of the NCAT Act must involve identification of an error of law, or an error other than an error of law to which leave should be granted under cl 12 of Schedule 4, and does not simply provide a losing party with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
[5]
Orders
We make the following orders:
1. Leave to appeal is refused.
2. The appeal is dismissed.
[6]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 10 October 2019