Waters v Silva Portfolios Pty Ltd t/as Ballina Waterfront Village and Tourist Park

Jurisdiction of the Appeal Panel

1. The decision of the Tribunal is an internally appealable decision: NCAT Act, ss 32(4) and 80(1).
2. Section 80(2) of the NCAT Act provides that an internal appeal can be made: (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds
3. In this case, the decision of the Tribunal is an 'interlocutory' decision: see NCAT Act, s 4(1) and the meaning of 'interlocutory decision', which includes at (d) a decision for 'the extension of time for any matter (including for the lodgement of an application or appeal)'. The decision of the Tribunal to dismiss Ms Waters' application under s 68 of the RLLC Act was made as a consequence of dismissing her application for an extension of time under s 41 of the NCAT Act.
4. Hence, by reason of s 80(2)(a), Ms Waters requires the leave of the Appeal Panel in order to appeal the decision of the Tribunal at first instance.
5. As Ms Waters' appeal is an appeal from a decision of the Tribunal in the Consumer and Commercial Division, cl 12(1) of Sch 4 of the NCAT Act provides that the Appeal Panel may only grant leave to appeal if it is satisfied that Ms Waters may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
6. In Collins v Urban [2014] NSWCATAP 17, at [71], [76] and [79], the Appeal Panel considered the meaning of 'a substantial miscarriage of justice', as it appears in cl 12(1) and said: [71] …[I]t can be seen that 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. … [76] Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) where there 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 … [79] In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result . . . it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred.
7. Even where an appellant satisfies the abovementioned requirements, the Appeal Panel must still consider, in the exercise of its discretion, whether leave to appeal should or should not be granted under s 80(2)(a) or (b).
8. In this case, the onus is on Ms Waters to satisfy the Appeal Panel on the balance of probabilities that she may have suffered a substantial miscarriage of justice and that the Appeal Panel should grant her leave to appeal.

Background

1. In 2004, Ms Waters became a resident of a home located in the Park operated by the Park Operator's predecessor. At that time, Ms Waters and the then Park Operator entered into a three-year residential tenancy agreement (site agreement), under the provisions of Part 3 of the then Residential Parks Act 1998 (NSW) (now repealed) (RP Act).
2. In September 2007, Ms Waters entered into a new one-year fixed term residential tenancy agreement with the then Park Operator. That agreement was also made under the terms of the RP Act. That agreement contained the following additional term: The rent can be increased during this term in accordance with the percentage increase of the married age pension using the following method (Note this is our method of increase whether you are receiving a pension or not). Latest married (couple) age pension divided by code. Code relating to this Tenancy Agreement is 2.51 Code method: Married age pension at the time of commencement of residency $43850 divided by rent amount $174.70 at commencement of tenancy = 2.51 code.
3. The Commonwealth Age Pension was increased twice every year, in March and September. Following each increase in the Age Pension, the Park Operator also increased Ms Waters' site fee in accordance with the abovementioned formula. On each occasion there was an increase, in compliance with s 53 of the RP Act, the Park Operator also gave Ms Waters written notice of the increase, including details of the increased amount and when it was payable by.
4. On 26 April 2013, the Park Operator wrote to Ms Waters, giving her notice that her code was being updated to 2.18. The Park Operator went on to explain that the code had been updated: … [due] to the changes to the married age pension base rate and changes to how supplements are paid. Your new code will be updated in your tenancy agreement, which is due for renewal.
5. Ms Waters did not and has not as at the date of the hearing of her appeal renewed her site agreement.
6. Having given Ms Waters written notice of the change in her code, the Park Operator, applied the new 2.18 code to all future site fee increases. The Park Operator also contends that each increase was based on the latest increase in the base married (couple) pension and not the latest increase in the full (base plus supplements) married (couple) pension.
7. On 1 November 2015, the RP Act was repealed and the RLLC Act came into operation. However, the terms of Ms Waters' site agreement, as they applied immediately before the commencement of the RLLC Act continued to apply: RLLC Act, Sch 2, clause 2. That is, the formula for site fee increases, as contained in Ms Waters' 2007 site agreement, continued to apply.
8. Since April 2013, Ms Waters knew that the Park Operator was calculating her site fee increases using the new 2.18 code. Ms Waters also paid the increased amount every time the Park Operator notified her, in writing, of the increased amount.
9. On 25 June 2019, Ms Waters made her application, under s 68 of the RLLC Act. That section provides as follows: 68 Refund of overpaid site fees if increase not compliant (1) A home owner under a site agreement may apply to the Tribunal for an order directing the refund of overpaid site fees on the ground that the increase of site fees did not comply with a requirement of this Division. (2) The Tribunal may make any of the following orders - (a) an order directing a refund to the home owner, (b) an order directing a refund to any other home owner in the community who the Tribunal becomes aware also had a non-compliant increase of substantially the same kind, (c) any ancillary order that the Tribunal, in the circumstances, thinks appropriate. (3) An application under this section must be lodged no later than 12 months after notice of the increase was given to the home owner.
10. In her application before the Tribunal at first instance, Ms Waters sought an application for an extension of time to lodge her application, as it had been lodged outside the 12-month period prescribed in s 68(3) of the RLLC Act. In this regard Ms Waters provided an explanation as to why she had delayed in bringing her application.
11. In regard to her substantive application, under s 68 of the RLLC Act, Ms Waters contended that the Park Owner's 23 April 2013 'Notice of Increase' was ineffective because she had not given her written consent to the change, as required under the RLLC Act.
12. The Park Operator contends that, Ms Waters had agreed/consented to the 2013 changes.

Notice of Appeal

1. In her Notice of Appeal, Ms Waters stated that she challenged both orders made by the Tribunal and that instead of such orders she sought the following orders: An order granting me an extension of time to apply for a refund. An order that the respondents refund me all the amounts overcharged for rent. An order that the respondents adhere to the terms of my signed contract (lease), only increasing rent using the original Code and the Base married age pension rate as is used now and has always been used.
2. Under the heading 'Grounds of Appeal', Ms Waters identified her grounds of appeal as involving a 'Point of Law' and the 'Extension of time'. In regard to a 'Point of Law', Ms Waters contended that ss 66(2) and 68(1) and (2) of the RLLC Act did not allow the Park Operator, or the Tribunal, to alter fixed methods of site fee increases by reason of complaints made by other home owners within the park of the Park Operator. In regard to the 'Extension of time' issue, Ms Waters contended that the Tribunal had based its decision on 'the appearance of my capabilities and not my medical evidence'. Ms Waters went on to explain why she disagreed with the finding of the Tribunal that she could have made her application within the prescribed 12 month period.
3. In her Notice of Appeal, Ms Waters also sought leave to appeal because (a) the decision of the Tribunal was not fair and equitable, (b) the decision was against the weight of evidence and (c) she had significant new evidence that was not available at the time of the hearing before the Tribunal at first instance. In summary, the grounds relied on by Ms Waters were as follows: 1. The decision was not fair and equitable: Ms Waters said she felt the decision was biased against her in that the Tribunal: 1. said that 'I provided no evidence that I was unhappy with the increases & paid no attention to the respondent's lack of evidence'; and 2. that it was inequitable for the Tribunal to have found that she could have 'got on the phone (after I provided reasons I couldn't) or gone to the Tribunal as if I was fully able, without considering my medical evidence'; and 3. made her feel she was had done something wrong in hiding part of the letter she had received from Northern Rivers Community Legal Centre, Tenants Advice and Advocacy Service (NORTAAS), dated 19 June 2019. In its letter NORTAAS provided Ms Waters advice in regard to her increases in site fees. It is unclear how long that letter was, as Ms Waters only provided page 1 and 2 of the letter. 1. The decision was against the weight of evidence: Ms Waters said that the Tribunal 'should have given more weight to the evidence I provided about fixed method increases & refunds of overcharged rents (invalid increases) …' and the evidence of her family members about her continued complaints of invalid increases; and 2. New evidence: the new evidence on which Ms Waters sought to rely included additional medical certificates and reports that were dated in May and November 2012 and April and May 2016 and a copy of a letter she received, four days after the hearing before the Tribunal at first instance, from NORTASS. Ms Waters attached a copy of these documents to her Notice of Appeal.
4. In addition to her Notice of Appeal, Ms Waters filed and served: 1. a small bundle of documents she described as being amendments to her appeal application and an additional medical certificate. The amendments are in effect Ms Waters' commentary on aspects of what is recorded in the transcript (filed and served by the Park Operator) of the hearing before the Tribunal at first instance; and 2. a copy of the material that she had relied on at the hearing before the Tribunal at first instance.

Reply to Appeal

1. In its Reply to Appeal, the Park Operator: 1. supported the decision of the Tribunal not to extend the time within which Ms Waters could lodge her s 68 application; 2. supported the decision of the Tribunal to dismiss Ms Waters' application for a refund of overpaid site fee in that the April 2013 Notice of Increase in site fees complied with the requirements of the RP Act and because Ms Waters had agreed to that increase; and 3. opposed Ms Waters being granted leave to appeal because: 1. Ms Waters had not properly identified any errors of law; 2. the decision of the Tribunal was fair and equitable and the Tribunal having said that Ms Waters could have made a phone call to seek assistance and support so as to lodge her application within time did not amount to the Member being biased against her; 3. the decision of the Tribunal was not against the weight of the evidence in that the Tribunal Member considered all the evidence that was before him and the applicable law; and 4. leave to rely on new evidence should be refused as the medical evidence and the NORTAAS letter was not significant new evidence that was not reasonably available to Ms Waters prior to the hearing at first instance.
2. In addition to its Reply to Appeal, the Park Owner filed and served: 1. written submissions, attached to which was a copy of the Commonwealth Payment rates as at September to December 2006 and a number of schedules prepared by Park Operator setting out the fortnightly site fee payments Ms Waters had made since 2013; 2. a bundle of documents which included more detailed written submissions, and 1. a copy of the written submissions that were relied on by each party before the Tribunal at first instance, and 2. a transcript of the hearing before the Tribunal at first instance; 1. an additional small bundle of documents filed on 4 December 2019. On the grounds of relevance and late filing of this material, Ms Waters objected to the Park Owner relying on such material. We upheld that objection on the grounds relied on by Ms Waters and we have not considered it any further.
3. At the hearing of the appeal Ms Waters and Ms Burke, on behalf of the Park Operator, each gave detailed oral submissions.

Decision of the Tribunal at first instance

1. In its oral reasons for decision the Tribunal noted that it had considered the documents and submissions filed or lodged by Ms Waters and the Park Operator (T, 32). The Tribunal went on to say the following: The law about the extension of time under section 41 of the Civil and Administrative Tribunal Act is that it provides the Tribunal with a discretion whether to do so or not, and the principles that apply in that exercise were set out in the appeal panel decision of Jackson v The New South Wales Land and Housing Corporation. To summarise that, time limits are to be strictly enforced, unless to do so would work an injustice to an applicant. When determining if time should be extended. The Tribunal has got to consider the length of the delay, the applicant's explanation of the delay, and any relevant prejudice that would be suffered by the respondent if time were extended, and furthermore whether the applicant has an arguable case. If the delay is excessive - or sorry, extensive, I should say, then the applicant's case has got to be more than merely arguable; it must have substantial merit.
2. The Tribunal went on to make the following findings: 1. the delay in the applicant (Ms Waters) making her application 'is in excess of five years' (T, 32) and 'extensive' (T, 35); 2. in 2013, following discussions between representatives of the residents and the Park Owner, there was an agreement to increase the percentage (i.e. the code) but reduce the base (i.e. the base rate of a married Age Pension which excluded all supplements). As a result 'paperwork was prepared for Ms Waters as it was with other people' - residents/home owners in the Park (T, 33); 3. Ms Waters did not sign that paperwork, but she has in fact 'paid on the new method of fixed increases, on two occasions each year, for the years following 2013, so she has paid under the new method on some 10 or 11 times, without making an application to the Tribunal about any dissatisfaction she had with that' (T, 33); 4. reasons given by Ms Waters for delay (T, 34): 1. 'I appreciate and I accept [Ms Water's disability] does cause her difficulties in doing things, and - however, in my view, that is not in itself an acceptable reason to delay making an application by over five years'; 2. fear of retaliation - 'I am unable to be satisfied on the balance of probabilities on the material before me that here's been any intimidation, or any intimidation that would have prevented the applicant from making an application within the 12-month time limit …'; 3. inability to get advice - '… [you] can get advice on the phone; you can make advice appointments over the phone with various legal and other services, and I note in fact the applicant was able to do that - she said there was a difficulty when the service … closed down for budgetary reasons. Accepting that to be the case, there are other services available, and in my view, that is not a sufficient reason for delay'; 1. prejudice to the respondent (the Park Operator) (T, 34 and 35) - 'The respondent essentially would have to repay site increases that it has given over the last six years for- which, in my view, is a prejudice to it. It hasn't had the ability to defend itself from these claims when they should have been made …'; and 2. 'it's not a strong case' and did not have 'substantial merit' because, knowing that she did not like the increase, Ms Waters did nothing about it other than to pay the rent increases without making an application to the Tribunal, which signified, under contract law, her acceptance of the arrangement which departed from the terms of her 2007 site agreement (T, 35). Additionally, the Tribunal accepted the submissions of the Park Operator that Ms Waters' site fees were increased in accordance with s 65 of the RLLC Act and therefore there had been no increase that did not comply with the requirements of Division 3 of Part 6 of the RLLC Act.

Consideration

1. While there is no right of a appeal on a question of law, it still remains open to Ms Waters to rely on a question of law in seeking leave to appeal: see Collins v Urban (supra), at [84].
2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, at [13], the Appeal Panel gave a number of examples of an error of law, including: 1. …; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether it applied a wrong principle of law; 4. whether there was a failure to afford procedural fairness; 5. whether the Tribunal failed to take into account a relevant (that is, a mandatory) consideration; 6. whether it took into account an irrelevant consideration; …
3. At [12], the Appeal Panel noted that, where an appellant is not legally represented, the Appeal Panel must, subject to any procedural fairness considerations that might arise to any other party, determine whether a question of law has in fact been raised in the appellant's appeal. In this case, neither Ms Waters nor the Park Operator were legally represented at the hearings before the Tribunal at first instance or on the appeal.
4. In our opinion, in her Notice of Appeal, Ms Waters raised two possible questions of law. These are: 1. the Tribunal was biased against her; and 2. the Tribunal incorrectly applied the law in that 'the law did not permit fixed methods to be altered by other tenant's complaints'. During the course of the hearing, Ms Waters also contended that under the law, without her written consent, the Park Operator was not permitted to change the basis on which her site fee increases were to be calculated.
5. We have dealt with these questions below under the heading the decision was not fair and equitable.
6. In the meantime it is convenient to first deal with Ms Waters' application to rely on new evidence.

New evidence

1. As we have already noted above, the new evidence on which Ms Waters seeks to rely pre-dates the hearing of her application before the Tribunal at first instance. That is, this 'new evidence' was in fact documentation that had been provided to Ms Waters well before the hearing of her application. While we accept that this documentation may not have been readily accessible to Ms Waters because it had been provided to her some time ago and she may not have readily recollected where she had placed it, in our opinion, it does not add anything further than what was contained in the medical certificate, dated 16 July 2019, that Ms Waters tendered into evidence at the hearing before the Tribunal at first instance. That medical certificate stated that Ms Waters had suffered from chronic back pain and other illnesses for a long time and this had 'severely impacted on her ability to function day to day'. The Tribunal said it accepted that Ms Waters' illness/disability caused her difficulties in doing things, but found that in the circumstances it was not such as to prevent her from making an application within 12 months as required under s 54(3) of the RP Act, or s 68(3) of the RLLC Act. The new evidence on which Ms Waters' seeks to rely does not contradict the findings of the Tribunal - it merely supports what is stated in the 2019 medical certificate that was before the Tribunal. We observe that neither the new evidence, nor the 2019 medical certificate state that Ms Waters' chronic back pain or illness had prevented her from making an application to the Tribunal.
2. Accordingly, we refuse Ms Waters' application to rely on the new medical evidence.
3. We make a similar finding in regard to the NORTASS letter, which is a letter sent to all home owners with 'homes' in the Park, informing them of a meeting to be held on 29 May 2018, at a local club, to discuss recent Tribunal decisions about electricity and sewerage charges. Again, as the letter pre-dates the hearing before the Tribunal and it does not add anything to that which was before the Tribunal, we refuse Ms Waters' application for leave to rely on this letter.

Bias

1. Section 38 of the NCAT Act refers to the procedure of the Tribunal generally, including provisions that the Tribunal is not bound by the rules of evidence and that it may inquire into and inform itself of any matter in such manner it thinks, subject to the rules of natural justice: NCAT Act, s 38(2). The rules of natural justice are adequate notice, fair hearing and no bias (i.e. an independent and impartial decision maker): Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [3] (Gleeson CJ, McHugh, Gummow and Hayne JJ)
2. The rule against bias includes, actual and apprehended bias on the part of the decision maker. The principles relating to actual and apprehended bias were recently summarised by the Appeal Panel in Wootten v Godfrey [2019] NSWCATAP 255, at [24] to [31].
3. As noted by the Appeal Panel, at [25], the onus of demonstrating actual bias rests on the party asserting bias, in this instance , Ms Waters.
4. We have carefully examined the transcript of the hearing at first instance and the Tribunal's reasons for decision (orally given) and we can find no remarks or statements of the Tribunal which evidence actual bias. There are no remarks or statements which suggest that the Tribunal had prejudged the matters in issue or closed its mind to any argument in support of Ms Waters' case: (see SBBA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 90 at [15]). On the contrary, we are satisfied having regard to the transcript of the proceedings before the Tribunal at first instance,thatthe Tribunal Member gave Ms Waters every opportunity to present her case and have her submissions considered.
5. In Wootten, at [26], the Appeal Panel noted that the test for apprehended bias is whether a fair-minded observer might reasonably apprehend that a judge might not bring an impartial mind to the resolution of the question to be decided. At [28], The Appeal Panel went on to note that: 28 In contrast to actual bias, the test of apprehended bias is objective. It involves possibilities (real and not remote) not probabilities. The question is not whether the decision-maker would not actually bring an impartial mind to the matter. The question is whether the fair-minded lay observer might reasonably apprehend that to be the case. …
6. In our view, based on the matters of which Ms Waters' complains, these do not give rise to any apprehended bias on the part of the Tribunal Member. As we have already noted, in our view, the Tribunal Member gave Ms Waters every opportunity to present her case and have her submissions considered. The onus was on Ms Waters to satisfy the Tribunal that the discretion to extend time should be exercised in her favour and in doing so to establish that her application under s 68 of the RLLC Act was an arguable case and did not lack merit.
7. In regard to Ms Waters' complaint that the Tribunal did not accept her evidence that she was unhappy with the 2013 changes, the Tribunal, as we have noted, accepted that evidence. However, the Tribunal was not satisfied that her assertions of dissatisfaction were sufficient to explain the delay in bringing her application. In our view, such a finding was open to the Tribunal on the evidence and did not amount to a bias, actual or apprehended, on the part of the decision-maker.
8. In regard to Ms Waters' other complaint that the Tribunal said she was hiding part of the 19 June 2019 letter of advice from NORTAAS, we could find no reference to such a remark. However, what the Tribunal did say, in its reasons for decision, in regard to that letter was as follows (T, 32): Now, I've considered the applicant's folder of documents. I've also considered the second page of a letter or another page of the letter from a tenant's advisory service. There was one page plus some legislation provided. I don't have the whole letter, but I've taken what I have been provided with into account, …
9. Again, in our view, there is no evidence of bias, actual or apprehended, on the part of the Tribunal Member. On the contrary, the Tribunal expressly said that what had been provided was being taken into account.

Incorrectly applied the law

1. As we have noted, the Tribunal found that Ms Waters' site fees had been increased in accordance with s 65 of the RLLC Act. This finding was based on the Tribunal's earlier finding, on the material before it, that Ms Waters had, by her conduct, agreed to the changes set out in the Park Operators letter of 26 April 2013.
2. Ms Waters' contends that, as a matter of law, the Tribunal had erred in its findings because the RLLC Act prohibits park operators from making a change to an agreed fixed method of future increases of site fees, unless the home owner gives his or her written consent to that change.
3. In our view, Ms Water's contention is misconceived.
4. While s 66(7) of the RLLC Act provides that the terms of a site agreement fixing the method of future increases of site fees may be varied if the parties enter an agreement to do so, this was not the applicable law, at the time the Park Operator made the 2013 changes. The applicable law was s 53 of the RP Act, which did not contain a provision along the lines of s 66(7) of the RLLC Act.
5. Section 53 of the RP Act relevantly provided as follows: 53 Increase of rent (1) The rent payable by a resident under a residential tenancy agreement must not be increased except by notice in writing given to the resident specifying the amount of the increased rent and the day from which the increased rent is payable. (2) A day specified as the day from which increased rent is payable must not be earlier than 60 days after the day on which notice of the increase was given under this section. (3) … (4) … (5) A notice of increase of rent given in accordance with this section (and not cancelled by a later notice or affected by any order of the Tribunal) varies the residential tenancy agreement so that the increased rent specified in the notice is payable under the agreement from the day specified in the notice. (6) The rent payable by a resident under a residential tenancy agreement that creates a tenancy for a fixed term must not be increased during the currency of the fixed term unless the amount of the increase, or a method for calculating the amount of the increase, is set out in the agreement. (7) A residential tenancy agreement must not set out more than one method of calculating the amount of any increase of rent payable by the resident under the agreement during the currency of the fixed term of the agreement. If more than one method is specified, the method that results in the lowest increase of rent is the applicable method. (8) A rent increase (including a rent increase permitted under subsection (6) or provided for in any other residential tenancy agreement) is not payable by a resident under a residential tenancy agreement unless the rent is increased in accordance with this section or by an order of the Tribunal. (9) A park owner must not contravene or fail to comply with this section. Maximum penalty: 10 penalty units.
6. As we have already noted, in 2013, the fixed term of Ms Waters' residential tenancy agreement had long expired. However, in the absence of Ms Waters entering into a new agreement with the Park Operator, consistent with s 14(1) of the of the RP Act, her 2007 residential tenancy agreement provided that she could: …[stay] on the residential site at the same rent (or at an increased rent if the rent is increased in accordance with the Residential Parks Act 1998) and otherwise under the same terms unless or until the agreement is ended in accordance with the Residential Parks Act 1998.
7. Hence, by reason of this provision, Ms Waters was entitled to remain on the residential site after her one-year fixed term residential tenancy agreement had ended and she was also entitled to remain there at the same rent and under the same terms of her fixed term residential tenancy agreement. However, this did not extend her one-year fixed term residential tenancy agreement. Instead, a new periodic residential tenancy agreement came into existence where her rent (i.e. site fees) remained the same 'or at an increased rent if the rent is increased in accordance with the Residential Parks Act 1998'.
8. While we are not critical of the Tribunal's approach in examining whether, on the material before it, Ms Waters had, through her conduct, agreed to the 2013 changes, in our opinion, the Tribunal did err in failing to first have regard to the requirements of s 53, which prescribe the circumstances in which a park operator can increase rent. In this case, the question was whether the 26 April 2013 letter of the Park Operator complied with the relevant requirements set out in that section.
9. Notwithstanding this error, in our opinion, based on the material that was before the Tribunal at first instance, it would appear that the Park Operator's letter of 26 April 2013 did comply with the requirements of s 53 of the RP Act, in particular ss 53(1), (2) and (5).
10. First, the letter was a notice, in writing, that specified the amount of increased rent (including the basis on which it was calculated) and the day from which the increased rent was payable, which was not earlier than the 60 days after the notice was issued. The method for calculating the increased rent remained the same, namely a fixed method of the latest married Age Pension divided by code. However, the 2013 changes did involve a change to what was meant by the term 'latest married age pension' and a change in the code or percentage amount. As noted by the Tribunal, at T32 and T33, by basing the increase on the base rate of the latest married Age Pension and reducing the code to 2.18, the Park Operator had in effect reduced the pension amount on which the increased rent was based and at the same time increased the percentage amount of that rent that would become the increased rent amount by decreasing the code number.
11. On the material before the Tribunal, it is unclear whether the Park Operator's 2013 changes actually increased or decreased the amount Ms Waters would have paid had the full married Age Pension and the 2.51 code been applied. It was Ms Waters' contention that there was an increase and not a decrease. However, she failed to place any evidence before the Tribunal in support of this contention other than mere assertion.
12. In our opinion, for the reasons we have stated above, it was open to the Park Operator to make these changes as Ms Waters' residential tenancy agreement was no longer a fixed term agreement. Having given Ms Waters written notice of this increase, in accordance with s 53 of the RP Act, in our opinion, it was open to the Tribunal to find that by her conduct (i.e. in paying each and every increase when it was due and payable), she had agreed to that increase.
13. We note , had Ms Waters considered that the Park Operator's 2013 notice of increased rent was excessive, s 55 of the RP Act, gave her a right to apply, within 30 days of receiving her 2013 notice of increase, to the Tribunal's predecessor (the Consumer, Trader and Tenancy Tribunal) for an order declaring that this increase was excessive. At no time did Ms Waters make an application under that section.

Decision against the weight of evidence

1. There are two aspects to this ground in that Ms Waters' contends that the Tribunal should have given more weight to the evidence of her family members about her continued complaints of invalid increases and the evidence she provided in regard to the invalid increases.
2. In the material filed in this appeal, Ms Waters did not provide any evidence that was given by her family members to the Tribunal at first instance. Nor has she pointed to any part of the transcript of the hearing before the Tribunal where a family member gave evidence. Hence we have not considered this aspect any further.
3. In regard to the evidence she provided, Ms Waters contended that the Tribunal should have given more weight to the letters she received from the Park Operator dated 19 May 2014, 17 April 2014, 22 October 2014, 27 April 2015, 14 December 2015, 18 July 2016 and 5 April 2018. In the letter dated 19 May 2014, the Park Operator provided, at the request of Ms Waters, a comparison of her site fee (rent) increases for the years 2010/2011 to 2014/2015, as compared to increases of other home owners/residents in the Park with comparable sized sites. At the conclusion of the letter, the Park Owner said: Sue as you can see unfortunately you did have a higher than normal increase as of July 2013 due to adjustments to the Married Age Pension and the inconsistency of site fees compared to sites the same size as yours. The increase narrowed the gap and with the increase due in July 2014 it gives an even smaller gap compared to others.
4. The remaining letters are copies of the bi-annual site fee (rent) increase notices Ms Waters received from the Park Operator.
5. The fact that the Tribunal did not make specific reference to these notices and the letter of 19 May 2014 does not mean that the Tribunal had disregarded this material.
6. The applicant also contends that prior to 2013, her rent (site fee) increases were based on the most recent increased base married (couple) Age Pension and that subsequent to the 2013 changes, her increases were based on the most recent increased full married (couple) Age Pension. In our view, the material that was before the Tribunal at first instance does not support this assertion. Nor did the Tribunal make a finding to this effect. Instead, it accepted the evidence of the Park Operator that prior to the 2013 change Ms Waters' rent increases were based on the increased full married (couple) Age Pension and since 2013, this had been changed to the recent increased base married (couple) Age Pension. Again, in our opinion, this finding was open to the Tribunal based on the schedule of increased rent amounts the Park Operator placed before the Tribunal. Ms Waters, on whom the onus lay did not provide any evidence that contradicted what was contained in these schedules.
7. Accordingly, we do not find that the decision of the Tribunal was against the weight of the evidence that was before it.

Conclusion re application for leave to appeal

1. For the reasons set out above, Ms Waters has failed to satisfy us that leave should be granted for her to rely on additional evidence that was not before the Tribunal at first instance. In this regard we have found that this evidence pre-dates the hearing before the Tribunal at first instance and adds nothing more than what was before the Tribunal at first instance.
2. Ms Waters has also failed to establish that the decision of the Tribunal at first instance was against the weight of the evidence. In that regard, we have found that the findings of the Tribunal were open to it on the material before it.
3. While we have found that the Tribunal erred in that it failed to consider whether the 26 April 2013 letter of the Park Operator complied with s 53 of the (then applicable) RP Act, for the reasons stated above, Ms Waters has not established that that the decision of the Tribunal was not fair and equitable, because, on the material that was before the Tribunal it would appear that the letter complied with the requirements of s 53. Furthermore, the findings reached by the Tribunal are consistent with this.
4. Hence, we are not satisfied that Ms Waters has established that she may have suffered a substantial miscarriage of justice. On the contrary, we are satisfied that, on the material before it, it was open to the Tribunal to make a decision to refuse Ms Waters' application for an extension of time under s 41 of the NCAT Act. As we have already noted, as a consequence of this decision, the Tribunal made a decision to dismiss Ms Waters' s 68 application.

Conclusion and orders

1. In light of our findings above it is appropriate to make an order refusing Ms Waters application for leave to appeal and to otherwise dismiss her appeal. Accordingly, we make the following orders: 1. The appellant's application to rely on fresh evidence is refused. 2. The appellant's application for leave to appeal is refused. 3. The appeal is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 April 2020