Sylvaney v Carolan

NCAT Appeal Panel|2015-11-24

Introduction

The appellant, Ms Ann Marie Sylvaney, is the owner of a property at Tallong. She purchased the property in about June 2015. The respondents, Ms Laura Carolan and Mr William Twiss Forster, leased the property from the former owners for a period of three years, commencing 1 January 2013 and expiring 1 January 2016.
On 11 August 2015 Ms Carolan and Mr Forster commenced proceedings against Ms Sylvaney in the Consumer and Commercial Division of the Tribunal seeking compensation for general improvements to the property and an order requesting access cease for a minimum period of six weeks while they completed lambing.
The proceedings were listed for conciliation and hearing on 10 September 2015. This was the first listing of the matter. On that day the Tribunal made a number of orders by consent, including an order that Ms Sylvaney pay Ms Carolan and Mr Forster the sum of $5,000 by 17 September 2015. The Tribunal also noted that the orders made, which included an order that the agricultural tenancy between the parties be terminated and that the order for possession be suspended until 17 September 2015, were in full and final settlement of all disputes. The Tribunal further noted that it was agreed no further monies were owed by Ms Carolan and Mr Forster to Ms Sylvaney.
Ms Sylvaney appealed the decision on 17 September 2015 but only challenged the consent order for the payment of monies by her and the consent notation that it was agreed she was owed no further monies. She did not challenge the consent orders for termination and possession.
At the hearing of the appeal and in submissions filed on 20 November 2015, Ms Carolan and Mr Forster made an application for costs of the appeal. Ms Sylvaney was directed to provide written submissions in response by 1 December 2015, which she did.
The Appeal Panel has determined to dismiss the appeal and has otherwise refused leave to appeal on the merits. We have also determined to make an order that Ms Sylvaney pay the costs of Ms Carolan and Mr Forster in the sum of $400. Our reasons follow.

Grounds of appeal and issues for determination

In her Notice of Appeal, Ms Sylvaney contended, in summary, as follows: 1. She received a notice of conciliation and hearing letter dated 24 August 2015 which did not clearly state what damage and how much compensation was being claimed by Ms Carolan and Mr Forster. 2. She therefore felt disadvantaged at the hearing and was unprepared to be able to defend the claims made appropriately and fairly. 3. At the hearing, the Tribunal did not receive any calculations to determine if the tenants' claim was fair and reasonable; nor did the Tribunal take into account the damage and degradation caused by the tenants to her property. 4. The Tribunal was dismissive of Ms Sylvaney's evidence and had clearly decided in their favour before she entered the room. She was delayed in attending on time because of car problems and by the time she entered the room, the Tribunal "launched" into her about her responsibilities as a landlord. The Tribunal did not listen to her side of the damages claim. 5. The Tribunal would not allow Ms Sylvaney to adjourn the proceedings and she felt heavily pressured by the Tribunal to make a rushed decision under duress. She was vulnerable because her godmother was dying and the Tribunal used this as an excuse to rush her. 6. Ms Sylvaney wanted to obtain further evidence to support her claim for damages. 7. The orders should be set aside to allow for a fair and unbiased hearing, although the termination order should remain in place. The tenants should pay all outstanding rates, no compensation should be payable by her and the tenants should pay damages for the degradation of her property.
Ms Sylvaney expanded upon these grounds in her oral submissions. She said that because she arrived late she did not understand that the Tribunal would not be making a final ruling on the day. If she had known this, she would not have agreed to the settlement. She said that the Member did not listen to her when she tried to explain her position and she was constantly interrupted. She thought this was the hearing and did not understand further directions could be made about evidence and a further hearing. The conciliation process was therefore unfair.
Ms Carolan and Mr Forster opposed the appeal and in their Reply to Appeal requested that the appeal be dismissed as being frivolous, vexatious, misconceived, or lacking in substance. They noted that the orders were made by consent and not by direction or arbitration of the Tribunal and queried whether Ms Sylvaney could appeal orders made through a consent agreement.
They also gave an account of what they say happened at the hearing as follows: 1. The Tribunal allowed both parties to present their cases. 2. Ms Sylvaney denied the existence of the lease. The Tribunal confirmed that there was a lease and explained to Ms Sylvaney the lease was due to expire on 1 January 2016. It was then suggested that the parties conciliate. 3. Conciliation discussions took place between Mr Carolan and Mr Forster and Ms Sylvaney and her support person, Mr Warren Newport, over a period of two hours. They were unable to reach an agreement during the conciliation and the parties returned to the court room. 4. When the Tribunal asked the parties whether an agreement had been reached, both parties said no. The Tribunal Member stated he would adjourn the matter but Ms Sylvaney stated she did not feel there was a need. Mr Newport suggested that the lease be terminated immediately and the Tribunal Member suggested that the parties discuss the terms for the termination. The parties discussed a payment of $5,000 by Ms Sylvaney, and Ms Carolan and Mr Foster agreed they would remove their stock by 17 September 2015 so that possession could be returned to Ms Sylvaney on that day. After a lunch break, the parties documented the agreement.
In written submissions provided to the Tribunal, which they repeated at the appeal hearing, Ms Carolan and Mr Forster opposed the appeal on the basis that: 1. The consent order was outside the scope of an appeal; 2. There was no unconscionable dealing during the conciliation hearing held on 10 September and Ms Sylvaney has never produced any documented evidence to support her appeal; and 3. They delivered possession of the property and removed their stock on 17 September 2015 yet Ms Sylvaney has not complied with the agreed order for payment.
Ms Carolan and Mr Forster also applied for costs in their written submissions. These submissions, Ms Sylvaney's submissions in response, and our consideration of this issue are dealt with later in these reasons.
Having regard to the grounds of appeal raised by Ms Sylvaney and the response of Ms Carolan and Mr Forster, the issues for determination by the Appeal Panel were: 1. Does the Appeal Panel have jurisdiction to determine the appeal? 2. Does Ms Sylvaney's appeal raise a question of law and if so was there error? 3. If not, should Ms Sylvaney be given leave to appeal on the merits?

Background to the dispute and decision at first instance

The application filed by Ms Carolan and Mr Forster sought orders under the Agricultural Tenancies Act 1990 (NSW). According to the application, Ms Carolan and Mr Forster claimed they had effected improvements to the property during the period of their occupation and had outlaid a sum of $11,760. They claimed compensation for these improvements. They also sought orders that access to the property by Ms Sylvaney be restricted for a period of six weeks. Ms Carolan and Mr Forster have a property next door to Ms Sylvaney's property.
Ms Carolan and Mr Forster attached a chronology to their application setting out the sequence of events that was said to have led to their claim. That chronology is summarised below.
On 1 June 2015, they received a letter advising that the property had been sold to Ms Sylvaney, suggesting a meeting. Mr Forster attempted to arrange a meeting and, after hearing no further from Ms Sylvaney, sent an email to Ms Sylvaney's solicitor on 2 July 2015. Ms Sylvaney contacted Ms Carolan and Mr Forster by telephone on 11 July 2015 and advised she would require "unhindered access" to the property. Thereafter there was said to be some limited email and telephone contact and on 29 July 2015, Ms Carolan and Mr Forster stated that they received a text from Ms Sylvaney advising that a transportable house would be arriving at the property the following morning and she required access to the house by her tradespeople. On the following day, a semi-trailer arrived carrying part of Ms Sylvaney's transported home. A second semi-trailer delivery was made on 6 August 2015 and, according to Ms Carolan and Mr Forster, they did not receive any advance notification of this delivery.
Following this there were further negotiations between the parties about what should happen until 1 January 2016, which was reported to include negotiations giving Ms Sylvaney unrestricted access to the property in exchange for monetary compensation. An alternative proposal was to fence off a section of the property at Ms Sylvaney's expense to facilitate unhindered access to the house. Ms Carolan and Mr Forster noted that there was no response to these offers as at 9 August 2015 and they commenced proceedings in this Tribunal on 11 August 2015.
On 24 August 2015 the Tribunal sent a notice of conciliation and hearing to the parties.
On 10 September 2015 the Tribunal made the following orders: 1. By consent, the Agricultural Tenancy Agreement is terminated immediately and possession of the farm is to be given to the Owner on the date of termination. 2. The order for possession is suspended until 17-Sep-2015. 3. By consent, the Owner Ann Marie Sylvaney is to pay the tenants William Twiss Forster and Laura Carolan the sum of $5,000.00 on or before 17-Sep-2015. Reasons: Compensation $5,000.00 NOTE: If the other party does not comply with the order to pay money, a certified copy of the above money order may be obtained from the Tribunal for the purpose of enforcement action through the Local Court. 4. Notations: By consent: a). The above orders are in full and final settlement of all disputes in this claim. b). The parties agree that no further monies are owed by the Tenants to the Owner in respect of Council Rates and the Rural Land Protection Rates under the agreement.

Does the Appeal Panel have jurisdiction?

The Civil and Administrative Tribunal Act 2013 (NSW) (the Act) provides that a party may appeal to the Appeal Panel against an internally appealable decision as of right, on any question of law, and with leave of the Appeal Panel on any other ground: see s 80(2)(b) of the Act.
Given the orders were made by consent, Ms Carolan and Mr Forster have questioned whether the consent order can be the subject of an appeal.
This issue has previously been considered by the Appeal Panel. The Appeal Panel has jurisdiction to hear and determine an internal appeal of a consent order for the following reasons: 1. A consent order is an order of the Tribunal and is binding on the parties in the same way as a decision given after a contested hearing (Loch v New South Wales Land and Housing Corporation [2014] NSWCATAP 110 at [10]). 2. The internal appeal jurisdiction of the Appeal Panel is set out in s 32 of the Act which relevantly includes "any decision made by the Tribunal in proceedings for a general decision". Section 5(1) defines "decision" broadly and includes the making of an order or determination. A "general decision" is defined in s 29(3) as a decision of the Tribunal determining a matter over which it has general jurisdiction. Section 29(1)(a) provides that the Tribunal has "general jurisdiction" over a matter if legislation (other than this Act or the procedural rules) enables the Tribunal to make decisions or exercise other functions and the matter does otherwise not fall within the administrative review, appeal or enforcement jurisdiction of the Tribunal. 3. The consent orders made on 10 September 2015 were a decision of the Tribunal (by reason of s 5 of the Act) in proceedings for a general decision (by reason of s 29(1) of the Act).
Accordingly, a decision made by consent is an "internally appealable decision" and the Appeal Panel has jurisdiction to hear the present appeal (see Loch v NSW Land and Housing Corporation, Jones v Dempsey [2015] NSWCATAP 28 and Hobson v NSW Land and Housing Corporation [2015] NSWCATAP 222).

Does Ms Sylvaney's appeal raise a question of law and if so was there error?

Contentions

Ms Sylvaney has raised dissatisfaction with the consent orders and in particular the process on the day of the hearing and the conduct of the Member who was allocated to preside. She alleges the Member was biased and pressured her into agreeing to the consent orders. Ms Sylvaney says she asked for an adjournment and felt rushed and unprepared. She would not have agreed to the consent orders if she had realised this was not the final hearing. Ms Sylvaney further contends orders 1 and 4(b) should be set aside and all issues, except for the termination of the agricultural agreement but including her claim for damages, should be listed for hearing.

Was there any procedural defect or non-compliance by the Tribunal in making the consent orders?

Section 59 of the Act gives the Tribunal authority to make consent orders to give effect to any agreed settlement reached by the parties. Section 59(1) provides: 59 Powers when proceedings settled (1) The Tribunal may, in any proceedings, make such orders (including an order dismissing the application or appeal that is the subject of the proceedings) as it thinks fit to give effect to any agreed settlement reached by the parties in the proceedings if: (a) the terms of the agreed settlement are in writing, signed by or on behalf of the parties and lodged with the Tribunal; and (b) the Tribunal is satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms that are consistent with the terms of the agreed settlement.
Rule 37 of the Civil and Administrative Rules 2014 (NSW) provides that, when exercising the discretion under s 59 of the Act, the Tribunal is to take into account the interests of any "vulnerable person" (whether or not a party) if it considers the person may be directly affected by the orders and it is appropriate to do so in the circumstances. Rule 37(3) defines a vulnerable person as meaning: (a) a minor, or (b) a person who is totally or partially incapable of representing himself or herself in proceedings before the Tribunal because the person is intellectually, physically, psychologically or sensorily disabled, of advanced age, a mentally incapacitated person or otherwise disabled.
In summary, the Tribunal has discretion to make consent orders under s 59(1) but this discretion is only enlivened if the preconditions set out in subs (1) are satisfied. It would therefore be an error of law if the Tribunal made the orders in the absence of either one of those conditions. In exercising the discretion, the Tribunal must also to take into account the interests of any vulnerable person. Failure to do so would be an error of law (House v The King (1936) 55 CLR 499).
The consent orders were made pursuant to agreed terms of settlement which were in writing and signed by the parties. They were consistent with the signed terms and the Tribunal would have had the power to make the orders under the Agricultural Tenancies Act.
Ms Sylvaney submitted she was vulnerable at the time of the hearing because she was unprepared, her godmother was dying, and she was not aware of the claims being made by Ms Carolan and Mr Forster.
There was no evidence Ms Sylvaney was a vulnerable person within the meaning of the r 37 at the time the orders were made. She does not contend that she was "intellectually, physically, psychologically or sensorily disabled" or "mentally incapacitated" at the relevant time and it is apparent she is not of "advanced age" or a minor.
Ms Sylvaney was not able to identify any procedural defect or non-compliance with s 59 of the Act and the Appeal Panel could not discern any error of law in this regard. Her appeal therefore cannot succeed on this basis.

Do Ms Sylvaney's grounds of appeal raise any other error of law?

Ms Sylvaney contends she was pressured into agreeing to the settlement, principally by the conduct of the Member, who was biased, refused to give her an adjournment, and failed to take her side of the argument into account. She relies on the sound recording of the hearing and the submissions made by her, as disclosed in her Notice of Appeal, to support her contention. However, she says there is a crucial part of the recording that is missing. Ms Sylvaney did not provide any sworn evidence of her account of the hearing or the conciliation and the only material before the Appeal Panel was a copy of the original application, the sound recording (provided by Ms Carolan and Mr Forster ‒ not Ms Sylvaney, the Notice of Appeal and Reply to Appeal, and written submissions from Ms Carolan and Mr Forster. They attached copies of the lease, the consent orders, the signed agreed terms of settlement, and text messages to Ms Sylvaney requesting payment in accordance with order 3 of the consent orders made on 10 September 2015.
Ms Carolan and Mr Forster also rely on the sound recording and their account of the conciliation hearing set out in their Reply to Appeal.
The existence of an "agreed settlement" is a jurisdictional fact on which the discretion under s 59(1) is necessarily based (see Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163). It would be an error of law to make orders by consent if the underlying settlement is tainted by undue influence, duress, or by other conduct or circumstances that may vitiate the consent.
Accordingly, the grounds for setting aside consent orders are the same as those for setting aside the agreement on which it is based (see Loch v NSW Land and Housing Corporation at [27] and Hobson v NSW Land and Housing Corporation at [11]). A party who seeks to set aside an agreement (or consent orders) must provide evidence of the facts which support that ground (see Loch v NSW Land and Housing Corporation at [29]).
In Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235, the High Court stated at 243-4: The question whether the compromise is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like.
This will include allegations of unconscionable conduct by the party who stands to receive the benefit of the agreement (see Hobson v NSW Land and Housing Corporation at [11] to [14]). Ms Sylvaney does not allege unconscionable conduct by Ms Carolan and Mr Forster but rather conduct which would amount to undue influence, unconscionable conduct or possibly duress by the Member.
Undue influence is where there is ascendancy by a stronger party over a weaker party such that the relevant transaction is not a free, voluntary, and independent act of the weaker party (A v N [2012] NSWSC 534 at [475] (Ward J), citing Sir Anthony Mason in the Anglo-American Law Review 1998). This is in contrast to unconscionable dealing, as noted by Dean J in Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447 at [13] as follows: The equitable principles relating to relief against unconscionable dealing and the principles relating to undue influence are closely related. The two doctrines are, however, distinct. Undue influence, like common law duress, looks to the quality of the consent or assent of the weaker party. Unconscionable dealing looks to the conduct of the stronger party in attempting to enforce, or retain the benefit of, a dealing with a person under a special disability in circumstances where it is not consistent with equity or good conscience that he should do so. The adverse circumstances which may constitute a special disability for the purposes of the principles relating to relief against unconscionable dealing may take a wide variety of forms and are not susceptible to being comprehensively catalogues. [Case citations omitted]
In A v N (supra), Ward J (as she then was) discussed the nature and scope of duress at [504] to [509] and whether it can be established by "illegitimate pressure", which her Honour noted has been criticised by the NSW Court of Appeal in Australian & New Zealand Banking Group v Karam [2005] NSWCA 344; (2005) 64 NSWLR 149 as being as being inherently vague. Relevantly, her Honour observed at [509]: If Mitchell and Karam are correct, then the concept of duress in New South Wales, if not Australia (noting that Mitchell was decided in Queensland), is now limited to unlawful conduct. This limitation is not difficult to reconcile with the classic cases on duress to the person. In Barton v Armstrong, the 'duress' was constituted by several death threats. In McLarnon v McLarnon (1968) 112 Sol J 419, the threats were of incarceration. In Saxon v Saxon [1976] 4 WWR 300, death threats were made against not the signer, but the signer's children. The threatened acts in each of those cases are unlawful. Moreover, even if Karam is incorrect is limiting duress to unlawful acts, the cases show that there is a high threshold to be met with respect to the conduct of the party alleged to be exerting pressure, as these cases all exhibit a high degree of threatened violence. [Emphasis added]
In summary, the threshold to establish duress is high and the doctrines of undue influence and unconscionable conduct require evidence that the party complaining about the agreement is either weaker or has a special disability (for instance, was vulnerable within the meaning of r 37) or was unduly pressured by a stronger party into an agreement where there was, for instance, little or no benefit to be gained by the weaker party.

Evidence before the Appeal Panel about the conduct of the hearing

The Appeal Panel listened to the sound recording of the hearing. Given the allegations made by Ms Sylvaney about the conduct of the Member, we summarise below the effect of those discussions and, in some instances where the matters discussed are particularly relevant to Ms Sylvaney's contentions, the detail of the discussions.
The Tribunal Member was presiding over a group list on the day of the hearing. He commenced the hearing list by reading out the name of each case and asking for appearances from the parties. There were a number of matters in the list for the day. Ms Carolan and Mr Forster announced their appearance and the Tribunal Member noted Ms Sylvaney was not present. He suggested to the other parties who were present that they attempt resolution of their claim. He said that he would be unlikely to make final orders in the matters listed on the day but if the parties settled their claim, he would be likely to make orders in accordance with their agreement. The Member then asked Ms Carolan Mr Forster to come forward and explain the claim. Ms Carolan explained their claim was based on a lease but Ms Sylvaney did not accept there was a lease and had not given them reasonable notice when entering the property. Semi-trailers driving over the property had destroyed the crops that they had planted for their livestock and this had caused damage as they would have to hand feed the sheep. They originally wanted orders to restrict access to the property but this was "too late" now because they had already suffered damage. The cost of hand feeding sheep would be in the vicinity of $3,300. Ms Carolan also explained that they had made improvements to the property and wanted to receive compensation for these improvements. The Tribunal Member responded to the effect that he could see "difficulties" with this claim.
Ms Sylvaney arrived after about 15 minutes. She asked to be assisted by Mr Newport who she said was her adviser and friend. Ms Carolan objected but once it was established Mr Newport was not a lawyer, the objection was not pursued further.
The Tribunal Member said to Ms Sylvaney that, from what he had heard, the issues seem to be that there was a lease over her property which was due to expire on 1 January 2016. He noted that from the document he had been provided the lease appeared to be "bona fide" and if Ms Sylvaney had purchased the property, she purchased it subject to the lease. This would mean that Ms Sylvaney was not allowed on to the property without proper notice. Ms Sylvaney told the Tribunal there was a dispute about whether there was a lease and as far she had understood it, there was only an agistment arrangement. She further stated that the former owner could give evidence that this was the intention. The Tribunal Member responded that the document sighted referred to the arrangement as being a "lease" and it may be difficult to establish this was an agistment agreement rather than a lease. Ms Sylvaney disagreed with this and said her solicitor had told her the lease would not stand up.
The Tribunal Member further noted that the way to resolve the issues would be for Ms Sylvaney to acknowledge there was a tenancy that would expire on 1 January 2016. He also said that he had already told Ms Carolan and Mr Forster they would have difficulties in establishing a claim for their improvements but noted that if Ms Sylvaney had entered the property without sufficient notice and caused the crops to be disturbed, they may have a reasonable claim for compensation for the cost to hand feed the stock. Ms Sylvaney responded to the effect, "Am I able to present my case before you make a decision?" The Member said words to the effect, "I'm not making a decision, I'm just trying to encourage you to resolve this issue based on what I have been told."
The Tribunal Member suggested to the parties that this was their opportunity to have a discussion about the damages to the crop. Ms Sylvaney stated that it was more complicated than this because Ms Carolan and Mr Foster had damaged her property and she wanted to make a claim for degradation to the property. The Member then said words to the following effect, I'm not going to enter into a formal hearing today but if you have destroyed the crop planted by Ms Carolyn and Mr Foster you may have to pay compensation for this.
Ms Sylvaney responded that this was not about the crop but about Ms Carolan and Mr Foster trying to get more time on her property and being unhappy she had purchased the property. She said it was very stressful time for her because her godmother was dying and it was uncertain how long she would live. Ms Carolyn and Mr Forster were unhappy because they wanted to purchase the adjoining land but had not been able to secure the purchase. Ms Sylvaney again raised her concerns about what she considered to be the degradation of the property and showed the Tribunal Member photographs. After looking at pictures the Tribunal Member said words to the effect, "I have some farming background and this looks normal. I don't think these photographs would take your case too far." When Ms Sylvaney wanted to argue this issue further, an exchange to the following effect took place: Tribunal Member: I have given you my opinion about your claim. You will need to tell me the basis of your claim. Ms Sylvaney: I will need an adjournment as I will need to go away and research this. Tribunal Member: I'm happy to adjourn the matter but in the meantime I'm going to make an interim order that Ms Sylvaney comply with the terms and conditions of the Agricultural Tenancy Act.
At this stage, Mr Newport interrupted and asked whether the parties could have discussions. Ms Carolan objected and the Tribunal Member commented (apparently addressing Ms Carolan and Mr Forster) "your claim for improvements is not as strong as you think but if Ms Sylvaney has damaged your crop you may have a claim".
Thereafter there was further discussion about whether the semi-trailers had left a hole in the property and whether asbestos had been left on the property. Ms Sylvaney denied this and both parties argued their position. The Tribunal Member then indicated he was minded to make an interim order that Ms Sylvaney was to stay off the property until 31 December 2015. There was further discussion with Mr Newport making a comment about the compensation sought by Ms Carolan and Mr Forster. Ms Sylvaney then said, "If you are going to make an order that I am not to go on to the block until 1 January then I am happy with this".
The Tribunal Member suggested that the parties should have a discussion about the compensation claim but said words to the effect, "if you want me to adjourn this, I will do this and you can come back in a few weeks. I understand you have a relative who is dying and you probably have other issues to think about but if you want to adjourn I will do that". Ms Sylvaney responded that she was not sure about her godmother's position but they did not need to adjourn because the damages that Ms Carolan and Mr Forster had caused far outweighed the compensation they claimed. The Member suggested that Mr Newport could have a discussion with the parties about this.
The discussion between the Member and Ms Carolan and Mr Forster and later between the Tribunal Member and both parties, including Mr Newport, was about 50 minutes in duration.
There was a break (it is unclear how long) and the parties came back into the room. The Member asked whether the issues had been resolved. Ms Carolan explained that they had attempted to have discussions. They had said they would accept 50% of the compensation claim but this offer was declined. Ms Sylvaney told the Tribunal the offer was not declined "per se" but she needed to have more detail about the calculations.
It was apparent that there was a problem with the Member's computer at this stage and it appears that there were no further recordings after this time. Ms Sylvaney says these additional recordings (which she refers to as the third and fourth recordings) were crucial.

Should the consent orders be set aside - was there error?

The Appeal Panel is not satisfied that the terms of settlement on which the consent orders were based are vitiated by undue influence or unconscionable conduct for the reasons that follow.
Ms Sylvaney's assertions about the conduct of the Tribunal Member are not borne out by the sound recording of the hearing.
First, we do not accept Ms Sylvaney's contention that she believed the Tribunal would make final orders on the day. Even if Ms Sylvaney did have such a belief, it was not induced by anything the Tribunal Member said or did.
Even though Ms Sylvaney was not present at the beginning of the call over of the group list when the Member made the statement that he was not likely to be making final orders, he made comments to this effect several times during his discussions with Ms Sylvaney at the hearing. For instance, when Ms Sylvaney asked if she could present her case before he made a decision, the Member responded he was not making a decision. He later offered her an adjournment and made it clear that the only order he was going to make on the day was an interim order that Ms Sylvaney not enter the property until after 31 December 2015. It is plain that the Member was not hearing the matters and he indicated, on more than one occasion, that the parties may need to lodge further evidence and return "in a few weeks". He offered Ms Sylvaney several adjournments.
Secondly, we do not accept that the Tribunal Member was biased, interrupted Ms Sylvaney and did not allow her to present her side of the story. When the sound recording is reviewed, it is apparent the Member was attempting to encourage both parties to discuss their disputes with each other to try and resolve their differences. He pointed out the weaknesses in both cases. The parties sought to raise factual issues about the matters in dispute to convince the Member about the strength of their case. The Member did not make any ruling on these matters and and was conciliating by giving tentative opinions on issues raised by the parties. He continued to urge the parties to discuss their disputes directly with each other with Mr Newport, who the Member described as someone who may be able to broker an arrangement between them as "the voice of reason". It was apparent there was considerable enmity between the parties. The Member was not biased in that he gave both parties an equal opportunity to talk about their case and made comments to both parties about the problems with their case. He did not interrupt other than to respond to issues raised by the parties about their cases.
When Ms Sylvaney arrived late, the Tribunal Member took the time to explain to her what had been discussed with Ms Carolan and Mr Forster and he stated that he had raised problems about their claim for compensation on the improvements.
Thirdly, we do not accept that the Tribunal pressured or rushed Ms Sylvaney into the settlement. The Tribunal discussed the claim made by Ms Carolan and Mr Forster about access to the property at length with Ms Sylvaney. She disputed there was a lease and was of the view she could have "unhindered access" to the property. The Tribunal made a statement about the strength of this case on the basis of the evidence before him, which he was entitled to do given it was possible he would need to make an interim order pending the final hearing if the matter could not be resolved. Indeed, the Member foreshadowed the interim order he was considering and gave Ms Sylvaney the opportunity to address this. He stated that he was not persuaded by her response that the arrangement was intended to be an agistment.
Relevantly, the Tribunal observed that the arrangement between Ms Carolan and Mr Forster and the former owners of the property was evidenced by a typewritten document, signed by the parties, which was headed "Lease Agreement". The parties were referred to as "lessors" and "lessees" and apart from the heading, there were two further references to a "lease". The Tribunal Member advised he was minded to make interim orders about access and offered Ms Sylvaney an adjournment to come back in "a few weeks" to put her case. Ms Sylvaney refused the adjournment because she said the damages she claimed would outweigh the claim made by Ms Carolan and Mr Forster. However, Ms Sylvaney had not filed any such claim and the Tribunal was therefore not obliged to consider this proposed claim, which is why the Member advised Ms Sylvaney that if she wanted to pursue this, she could lodge a claim with the Tribunal.
The Tribunal did not make interim orders at this stage, even though Ms Sylvaney said she would be happy with such orders, because Mr Newport interrupted this discussion and sought to progress settlement discussions.
It is clear from the sound recording that the Member was not forcing the parties to negotiate but was seeking to encourage the parties to discuss and resolve their disputes, being the current claim before the Tribunal by Ms Carolan and Mr Forster and the foreshadowed claim by Ms Sylvaney. He made comments about the potential strengths and weaknesses in the arguments based on the material provided but also made it plain that these comments were not definitive rulings.
There was no evidence Ms Sylvaney was suffering from a "special disability". Ms Sylvaney was able to argue her case and from the sound recording it is apparent she was eloquent and assertive. She had the assistance of Mr Newport, who raised issues with the Tribunal from time to time
In summary, having reviewed the sound recording, we cannot find any evidence that the Member was dismissive of Ms Sylvaney, biased against her, or that he pressured or rushed her into a settlement and sought to overbear her will. The Member brought the discussions to an end in the morning session because he wanted the parties to discuss that matter together. He had other matters in the list and had spent about 50 minutes with the parties discussing their disputes, with little apparent progress as neither party wished to move from their respective position. Ms Carolan and Mr Forster were prepared to concede there may be difficulties with their compensation case for improvements but vigorously denied they had caused any damage to the property. Ms Sylvaney denied damage to the property to the extent alleged by Ms Carolan and Mr Forster.
Both parties agree there were further discussions with the Tribunal after lunch. Ms Sylvaney asserts the missing sound recording would support her case but she has filed no evidence about this. In her submissions on costs, Ms Sylvaney states at [12] that Mr Newport would have been able to "bear witness" to the fact she had "repeatedly asked for an adjournment in the third section of the hearing" and to confirm she had not been heard and was "unfairly and unjustly treated". If Ms Sylvaney had wished to rely on evidence from Mr Newport, she should have provided this evidence prior to the hearing of the appeal. She was aware that the third and fourth recordings were not available by early November 2015.
Another important factor which counts against Ms Sylvaney's contention that she was pressured into the agreement under duress or undue influence is the content of the terms of the settlement agreed between the parties.
Ms Carolan and Mr Forster had a written lease until 1 January 2016. While Ms Sylvaney disputed this because she said she could adduce evidence from the former owner that this was not the intention, as pointed out by the Tribunal, this may have been a difficult case to establish. At the time of the hearing, this lease had another three and a half months to run. Ms Carolan and Mr Forster had a claim for $3,300, being the cost to hand feed their stock, and made further assertions about other damage on the property that would need to be fixed. They also had a claim for improvements, although they conceded this claim was not strong. On the other side, Ms Sylvaney had a claim for damages that she had not yet filed.
An issue raised by the Tribunal at the time was that the respective claims by the parties about improvements and damages had difficulties because these claims may have been more appropriately raised with the previous owners. Both parties went into the settlement discussions with claims that were amenable to compromise. It is plain that the terms of settlement represent a compromise. Ms Carolan and Mr Forster gave up their entitlement to possession of the property from 17 September 2015 and all claims for compensation for $5,000. Ms Sylvaney agreed to pay $5,000 for the benefit of vacant possession and a release of any claims by Ms Carolan and Mr Forster. There is nothing inherently unfair about this bargain.
Ms Carolan and Mr Forster have performed their part of the agreement but Ms Sylvaney has not. They have therefore given up a valuable right without receiving compensation. Relevantly, Ms Sylvaney has not sought to interfere with the orders for termination of the tenancy.
Accordingly, we are not persuaded that there was any error of law made by the Tribunal in making the consent orders on these grounds. There is no evidence of undue influence, duress or unconscionable dealings by the Tribunal; nor was there evidence of such conduct by Ms Carolan and Mr Forster. Relevantly, Ms Sylvaney was assisted throughout the process by Mr Newport.

Should Ms Sylvaney be given leave to appeal?

Ms Sylvaney has not established that the Tribunal made an error of law in making the consent orders. The question therefore arises whether she should be given leave to appeal.
In the case of a decision made by the Consumer and Commercial Division, the Appeal Panel may only give leave to appeal if it is satisfied that the appellant may have suffered a "substantial miscarriage of justice" because the decision was not fair and equitable, against the weight of evidence, or because significant new evidence had arisen, which was not reasonably available at the hearing (cl 12, sch 4 of the Act).
Ms Sylvaney contended that the consent orders were not fair and equitable because of the matters set out at [6] and [7] above.
The principles on whether leave to appeal should be granted by the Appeal Panel are well settled. In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel conducted a review of the relevant cases and set out the principles at [84].
For leave to appeal to be granted, an appellant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact. Ordinarily it is appropriate to grant leave to appeal only in matters that involve issues of principle, questions of public importance or matters of administration or policy which might have general application, an injustice which is reasonably clear, a factual error that was unreasonably arrived at and clearly mistaken; or that the Tribunal went about its fact finding process in such an unorthodox manner that it produced an unfair result.
The Appeal Panel is not satisfied Ms Sylvaney has established any of these matters. The consent orders were signed by the parties and agreed. Ms Sylvaney had the benefit of a support person to assist her during the hearing and the conciliation with Ms Carolan and Mr Forster. The agreement involved Ms Carolan and Mr Forster vacating the property some three and a half months before the expiry of the lease and giving up any claim for compensation. They surrendered the property based on the agreement but Ms Sylvaney has failed to perform her part of the agreed bargain. Ms Carolan and Mr Forster have therefore lost the benefit of an entitlement which cannot be easily reversed.
We therefore refuse leave to appeal.

Costs

Ms Carolan and Mr Forster submitted that Ms Sylvaney should be ordered to pay the costs of the appeal. Ms Sylvaney submitted there should be no order as to costs.
Costs in this jurisdiction are governed by s 60 of the Act. This section provides that: 60 Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant.
Section 60 has been considered by the Appeal Panel in a number of cases: see for instance CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21; Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120; Kurmond Homes Pty Ltd v Spiteri [2015] NSWCATAP 48; and Rose Nettis Pty Ltd v Three Tall Trees Pty Ltd [2015] NSWCATAP 51. As the Appeal Panel noted in eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [48]: The authorities considering the meaning of the expression "special circumstances" were recently reviewed in CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [23]-[31]. From those authorities, it can be seen that "special circumstances" are circumstances that are out of the ordinary, they do not have to be extraordinary or exceptional. Further, the discretion to award costs must be exercised judicially and having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs. Each situation must, of course, be assessed on a case by case basis to see whether or not special circumstances exist so as to warrant the award of costs.
Rule 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) provides that in proceedings for the exercise of functions in the Consumer and Commercial Division, the Tribunal may award costs in the absence of special circumstances if the amount claimed or in dispute is more than $30,000 (r 38(2)(b)) or if the amount is more than $10,000 but less than $30,000, where the Tribunal has made an order under cl 10(2) of sch 4 of the Act about conduct causing disadvantage (r 38(2)(a)). Neither of these provisions apply in this case.
Ms Carolan and Mr Forster contended there are "special circumstances" because: 1. Ms Sylvaney has not complied with the orders of the Tribunal on a number of occasions by failing to pay the compensation as required by order 3 of the consent orders dated 10 September 2015 and in failing to comply with the Appeal Panel directions made on 13 October 2015. She sought an extension of time to comply with order 2 made by the Appeal Panel, which required that she file and serve her written submissions and the sound recording or transcript of the hearing at first instance by 30 October 2015. Even though an extension of time was given, Ms Sylvaney still did not comply with the direction and failed to file any submissions or the sound recording. 2. This caused them prejudice and disadvantage and they lodged the sound recording to defend the claim made by Ms Sylvaney about the consent orders. 3. Ms Sylvaney had a weak case because the orders were made by consent and she did not provide any evidence to support her case. 4. The appeal was frivolous and vexatious or otherwise misconceived or lacking in substance. 5. They have incurred travel costs of attending the directions hearing and the appeal of $350, the costs of the sound recording and lost wages of $800 for Mr Forster and $400 for Ms Carolan. 6. Because Ms Sylvaney had taken out an apprehended violence order (AVO) against Ms Carolan and Mr Forster, they had incurred legal costs of $500 in retaining a lawyer to correspond with Ms Sylvaney on the appeal.
Ms Sylvaney provided lengthy submissions in opposition to the order for costs sought by Ms Carolan and Mr Forster. In essence, Ms Sylvaney's submissions repeated submissions made by her in her appeal that the orders made by the Tribunal on 10 September 2015 were not fair and equitable. Ms Sylvaney also submitted that she did not comply with the Appeal Panel orders because she was unable to obtain copies of the third and fourth recordings and the directions were confusing because they referred to "written submissions in opposition to the appeal" which she did not understand and in respect of which she sought clarification on 6 November 2015. She should not be disadvantaged by the confusion in the orders, the fact the Tribunal could not produce a complete set of the sound recordings of the hearing or that Ms Carolan and Mr Forster had incurred costs as a result of the AVO against them.
Taking into account the matters referred to in s 60(3) and the submissions of the parties, we find as follows: 1. Ms Sylvaney failed to comply with the Appeal Panel directions (s 60(3)(f)), the most significant non-compliance being that she failed to provide to the Tribunal and serve on Ms Carolan and Mr Forster submissions and the sound recording at first instance. Ms Sylvaney submitted that she could not provide the recording because not all of the sound recordings were available. She also submitted that the Appeal Panel's directions were confusing. In so far as Ms Sylvaney failed to provide written submissions by the due date, we accept she may have been confused because there was an error in the orders. Ms Carolan and Mr Forster provided their submissions in opposition to the appeal, which they were required to do regardless of whether Ms Sylvaney served submissions. Their submissions were based on the submissions made by Ms Sylvaney in her Notice of Appeal, which were in similar terms to her oral submissions at the hearing. We are therefore not persuaded that the failure to lodge written submissions before the appeal hearing "unnecessarily disadvantaged" Ms Carolan and Mr Forster in the conduct of the proceedings or impacted on the conduct of the appeal (see s 60(3)(a)). 2. However, this is not the case in relation to the sound recording. This was Ms Sylvaney's appeal and it was her obligation to serve the sound recordings if she sought to rely on it. The sound recording could have been served together with a submission that this did not represent the whole of the recording. She did not do so and this necessitated Ms Carolan and Mr Forster obtaining the sound recording and providing it to the Tribunal. This caused them disadvantage and weighs in favour of a costs order, at least in relation to this aspect of the appeal. 3. There is no evidence that the appeal proceedings were unreasonably prolonged by Ms Sylvaney (see s 60(3)(b)). Nor were the proceedings unduly complex and the amounts in dispute were ultimately modest (s 60(3)(d)). 4. We are not persuaded that the proceedings were frivolous or vexatious (s 60(3)(e)). We accept that Ms Sylvaney was genuine in her sense that there had been an egregious error and her grounds of appeal raised matters that were at least arguable. The Appeal Panel has jurisdiction to determine such an appeal and may set aside a decision at first instance if it is satisfied the underlying agreement on which it is based was tainted or that the Tribunal did not comply with the provisions of s 59 of the Act in making the orders. 5. Despite this, and for the reasons set out at [28 ‒ 31] and [55 ‒ 71], we have formed the view that Ms Sylvaney's appeal is lacking in substance (s 60(3)(e)) and had poor prospects from the outset (see s 60(3)(c)). There was little merit to Ms Sylvaney's claim given she was seeking to set aside only those parts of the agreed settlement that required her to give consideration for the compromise yet not those parts that required Ms Carolan and Mr Forster to forgo valuable rights, from which she would benefit. At the time Ms Sylvaney lodged her appeal, Ms Carolan and Mr Forster had given her possession of the property. 6. Ms Sylvaney made serious allegations of impropriety against the Tribunal Member, namely that he was biased, had used her dying godmother as "an excuse to hurry the proceedings" and she was "pushed and heavily pressured by the Member to make a very rushed decision under duress" (refer page 5 of the Notice of Appeal). It was further submitted that the Tribunal improperly rejected her requests for an adjournment (page 6 of the Notice of Appeal). The available sound recording not only failed to support such contentions but in fact demonstrated that the Tribunal was even handed in its approach and offered Ms Sylvaney several opportunities for an adjournment. 7. Based on the material provided, the Appeal Panel was not satisfied that Ms Sylvaney's contentions had a tenable basis. While a party may challenge a consent order by challenging the underlying agreement, they bear the onus to establish the basis on which such an agreement should be set aside. This was a serious contention and there is some force to the submissions made by Ms Carolan and Mr Forster that Ms Sylvaney has provided no evidence to support her claims yet she has lodged an appeal they have been required to defend. This is against the background that Ms Sylvaney has refused to pay the agreed amount under order 3 of the Tribunal orders. These matters weigh strongly in favour of making an order for costs against Ms Sylvaney.
When considering the circumstances of the case as a whole and the matters referred to above, we are satisfied that there are "special circumstances" warranting the displacement of the usual order that each party is to pay their own costs.
Section 60(4) of the Act provides: (4) If costs are to be awarded by the Tribunal, the Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis.
Costs include (s 60(5)): (a) the costs of, or incidental to, proceedings in the Tribunal, and (b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.
Ms Carolan and Mr Forster claim travel expenses ($350), legal costs incurred because of the AVO taken out by Ms Sylvaney ($500), and lost wages for two days for the directions hearing and in attending the appeal ($50 for 8 hour days for Mr Forster and $25 for 8 hours for Ms Carolan). They also incurred the costs of the sound recording.
The Appeal Panel does not consider that the costs incurred in engaging a lawyer because of the AVO should be awarded as these costs are not solely attributable to the appeal but rather the ongoing acrimony between the parties. Ms Carolan and Mr Forster have not provided substantiation for their lost wages but even if they had done so, the Appeal Panel is not persuaded these costs should be awarded. In the circumstances of this case, we are of the view that Ms Carolan and Mr Forster should be compensated for their out of pocket travel expenses and the costs of the sound recording, being $50, making a total of $400.

Orders

Having regard to the foregoing matters, the Appeal Panel: 1. Dismisses the appeal; 2. Refuses leave to appeal; and 3. Orders Ms Sylvaney to pay the costs of Ms Carolan and Mr Forster in the sum of $400.

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: 09 February 2016

Civil and Administrative Rules 2014(NSW)

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