Civil and Administrative Tribunal New South Wales Medium Neutral Citation: McMillan v Coolah Tourist Park Pty Ltd [2021] NSWCATAP 73 Hearing dates: 3 November 2020 Date of orders: 24 March 2021 Decision date: 24 March 2021 Jurisdiction: Appeal Panel Before: A Suthers, Principal Member Dr J Lucy, Senior Member Decision: (1) Time for lodging the appeal is extended to 20 August 2020. (2) A hearing is dispensed with in relation to the matters raised with the parties after the conclusion of the hearing. (3) The orders made by the Tribunal are set aside. (4) In substitution for the Tribunal's decision, the application is dismissed. (5) The respondent's costs application is dismissed. Catchwords: APPEALS – Where appellants applied to have declared void terms of proposed residential site agreement – Where Tribunal directed caravan park owner to enter into agreement with residents without certain terms - Whether Tribunal has jurisdiction to make orders in respect of a draft residential site agreement – Whether appellants were "home owners" who were entitled to apply to Tribunal – Whether Tribunal had jurisdiction to hear application - Where appellants applied for an order restraining the respondent from engaging in certain conduct in alleged breach of the rules of conduct for operators – Whether Tribunal erred in refusing to make the order sought Legislation Cited: Residential (Land Lease) Communities Act 2013 (NSW) Residential (Land Lease) Communities Regulation 2015 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Residential Parks Act 1998 (NSW) Residential Parks Regulation 2006 (NSW) Retirement Villages Act 1999 (NSW) Cases Cited: Anderson v Armitage [2014] NSWCATAP 72 Cockle v Isaksen (1957) 99 CLR 155 Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Di Salvo v Leung [2014] NSWCATAP 44 Eastern Nitrogen Ltd v Commissioner of Taxation [2001] FCA 366; (2001) 108 FCR 27 Emanuel (Rundle Mall) Pty Ltd v Commissioner of Stamps (1986) 41 SASR 122 Federated Amalgamated Government Railway and Tramway Service Association v The New South Wales Railway Traffic Employees' Association (1906) 4 CLR 488; [1906] HCA 94 Gallo v Dawson [1990] HCA 30; 93 ALR 479 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Melluish (Inspector of Taxes) v BMI (No 3) Ltd [1996] AC 454 Mitry v Zoom Relocations Group Pty Ltd [2018] NSWCATAP 88 New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231; (2019) 100 NSWLR 578 SAS Trustee Corporation v Rossetti [2018] NSWCA 68 Standard Portland Cement Co Pty Ltd v Good (1982) 2 NSWLR 668 (Privy Council) TEC Desert Pty Ltd v Commissioner of State Revenue [2010] HCA 49; (2010) 241 CLR 576 Vopak Terminals Australia Pty Ltd v Commissioner of State Revenue [2004] VSCA 10; (2004) 12 VR 351 Wilson v Brisbane; Wilson v Chan and Naylor Parramatta Pty Ltd [2019] NSWSC 1598 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 Texts Cited: Oxford English Dictionary online Macquarie Dictionary online Category: Principal judgment Parties: Geoffrey McMillan (First Appellant) Christine McMillan (Second Appellant) Coolah Tourist Park Pty Ltd (Respondent) Representation: Solicitors: First Appellant (Self-Represented) Second Appellant (First Appellant as agent for Second Appellant) Mid-West Law Practice (Respondent) File Number(s): 2020/00370997 (AP 20/35619) Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 5 August 2020 Before: K Rickards, General Member File Number(s): RC 20/00917 reasons for decision 1. The respondent, being a new owner of a caravan park, has been in dispute with the appellants, who were existing residents of the caravan park, in relation to a number of matters. 2. The respondent wanted the appellants to enter into a residential site agreement with it under the Residential (Land Lease) Communities Act 2013 (NSW). The appellants claimed that they were not required to do so and objected to some of the terms in the proposed agreement. They also considered that the respondent had used high pressure tactics to persuade them to enter into the agreement and that the respondent had engaged in harassment. 3. The appellants applied to the Tribunal to "delete" some of the terms in the proposed agreement or declare them void. They also applied for an order requiring the respondent to cease engaging in certain conduct. 4. The Tribunal found that one of the clauses in the proposed agreement was not lawful. It made an order requiring the respondent to enter into a site agreement with the appellants, without the objectionable term. It rejected the appellants' application for other orders. 5. The appellants appealed from that decision. 6. We found that the Tribunal did not have jurisdiction to make orders requiring the respondent to vary a draft site agreement. We set those orders aside. We have dismissed the remainder of the appellants' appeal. Background 1. Since 2015, the appellants, Mr and Mrs McMillan, lived in a home located on a permanent site in Coolah Caravan Park ("the site"). They had purchased a share in Coolah Home Base Pty Ltd, which owned the title to the land on which Coolah Caravan Park was situated ("the Land"), pursuant to an arrangement which gave them exclusive occupation of the site. 2. Coolah Home Base Pty Ltd went into voluntary administration. The Land was then sold to the respondent. The directors of Coolah Home Base Pty Ltd, Mr Graeme Booker and Ms Janet Kelly ("the Directors"), are also the directors and only shareholders of the respondent. 3. The respondent is the operator of the community under the Residential (Land Lease) Communities Act. A "community" is an "area of land that comprises or includes sites on which homes are, or can be, placed, installed or erected for use as residences by individuals, being land that is occupied or made available for occupation by those individuals under an agreement or arrangement in the nature of a tenancy…" (Residential (Land Lease) Communities Act, s 4(1)). A "community" may be a caravan park (as it is in this case). 4. The respondent, as operator of the community, sought to enter into site agreements with Mr and Mrs McMillan and other residents at Coolah Caravan Park. Under the proposed site agreement with Mr and Mrs McMillan, they were required to pay $184.63 per week. 5. Mr and Mrs McMillan refused to sign the proposed site agreement in the form in which it was provided to them. 6. On about 16 December 2019, Mr and Mrs McMillan applied to the Tribunal for orders under the Residential (Land Lease) Communities Act. One of Mr and Mrs McMillan's claims was that the operators had included additional terms in the draft site agreement which they said should be deleted or declared void. 7. There is a standard form of residential site agreement (Residential (Land Lease) Communities Act, s 27(1), Residential (Land Lease) Communities Regulation 2015 (NSW), cl 6 and Sch 1). The parties to a site agreement may insert additional terms in a standard form of site agreement, but only if the terms do not contravene the Residential (Land Lease) Communities Act or any other Act, are not inconsistent with the terms prescribed in the standard form and are set out in a separate and clearly labelled part of the site agreement: Residential (Land Lease) Communities Act, s 28(1). 8. One of the terms to which Mr and Mrs McMillan objected was additional term 67. Additional term 67 defined the term "disparage" and related terms for the purposes of the agreement. It provided that: "disparage includes any oral or written statement made to any person, body or corporation, including, without limitation, any statutory or regulatory body or corporation, that is critical of, or impugns, the operator of the owner or any director or other officer or employee of either of them. disparagement means disparagement of any one or more of the persons referred to in A. disparage and disparagement do not include a complaint made to an operator or owner by a resident in good faith and for a proper purpose: the onus of establishing which is upon the resident making the complaint." 1. Additional term 67.1 prohibited a resident from disparaging certain persons, including the operator and owner. 2. Mr and Mrs McMillan also claimed that the operators had engaged in high pressure tactics and harassment to persuade residents to sign a site agreement, contrary to cl 4 of Sch 1 to the Residential (Land Lease) Communities Act. 3. Pursuant to s 54(1) of the Residential (Land Lease) Communities Act, an operator of a community is to observe the rules of conduct in Schedule 1 in the course of the carrying on of business or the exercise of functions as operator. Clause 4 of Sch 1 to the Residential (Land Lease) Communities Act provides that an operator must not engage in high pressure tactics, harassment or harsh or unconscionable conduct. Tribunal hearing 1. After holding a hearing, the Tribunal gave written reasons for decision and made orders, on 5 August 2020. 2. In its written decision, the Tribunal referred to s 28 of the Residential (Land Lease) Communities Act and stated that the additional terms of the site agreement numbered 34 to 66 did not contravene the Act, nor were they inconsistent with the terms of the standard site agreement. It then made some comments about additional term 67 of the agreement at [4]-[8] of its decision as follows: "4. Both the owner and the occupiers of the subject park facility have certain rights and obligations which are set both by the Act and by the common law. These rights and obligations fundamentally include a right to disagree with each other and to be critical of the actions of each other, but without descending to defamatory statements. 5. The accepted common meaning, as well as the standard dictionary definition, of the word 'disparage' is 'to regard or represent someone or something as being of little worth'. 6. The above definition is quite different to the definition which is purported to be set by the additional term 67 of the subject Site Agreement which states that the word 'disparage' includes any statement 'that is critical of' the respondent or any of its directors, officers or employees. This definition within the Site Agreement is not only technically incorrect but also contravenes the overall rights of occupiers which are set under the Act, in addition to their rights under the common law. 7. The additional term 67 within the Site Agreement also defines 'disparage' to include any statement which 'impugns' the respondent or its directors, officers or employees. The standard dictionary definition of the term 'impugn' is to 'dispute the truth, validity, or honesty' of another person. 8. The other effect of term 67 of the Site Agreement, that the applicant is not to impugn the respondent, does not contravene the Act or any other legislation, is not inconsistent with the terms set out within the standard form as contained within the Site Agreement and, as explained above, is contained within a separate and clearly labelled part of the Site Agreement." 1. The Tribunal then turned to the claim that the operators had engaged in high pressure tactics and harassment, contrary to cl 4 of Sch 1 to the Residential (Land Lease) Communities Act. 2. The Tribunal found that the evidence did not establish, to the required standard, that the respondent had engaged in such conduct. 3. The Tribunal ordered as follows: 1. "Pursuant to section 27(5) of the Residential (Land Lease) Communities Act 2013 (NSW) the respondent COOLAH TOURIST PARK PTY LTD is to immediately and within 21 days of the date of these Orders prepare and enter into a site agreement with the applicant … in relation to the site … presently occupied by the applicant. 2. The site agreement to be entered into pursuant to Order 1 above is to be in the same form and have the same content as the site agreement … previously provided by the respondent to the applicant except that it is to have deleted the words 'that is critical of, or' from the definition of the term 'disparage' as set out within term 67." The scope and nature of internal appeals 1. Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act"). 2. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited by cl 12(1) of Sch 4 to the NCAT Act. In such cases, the Appeal Panel must first be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. In Collins v Urban [2014] NSWCATAP 17 ("Collins"), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 to the NCAT Act may have been suffered 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." 1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4 to the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act. 2. In Collins, the Appeal Panel at [84] stated that ordinarily it is appropriate to grant leave to appeal only in matters that involve: "(a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed." 1. In Cominos v Di Rico [2016] NSWCATAP 5 at [13], the Appeal Panel noted that it may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle in s 36(1) of the NCAT Act, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. 2. Finally, the Appeal Panel may decide to proceed by way of new hearing. Section 80(3)(a) of the NCAT Act provides that the Appeal Panel may decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing. It may also permit fresh evidence to be given at the new hearing: NCAT Act, s 80(3)(b). Grounds of appeal 1. Mr and Mrs McMillan identified a number of grounds of appeal. These may be summarised as follows: 1. The Tribunal erred in making an order under 27(5) of the Residential (Land Lease) Communities Act because Mr and Mrs McMillan had not applied for an order to enter into a site agreement; 2. The Tribunal: 1. erred in rejecting Mr and Mrs McMillan's claim that cl 45 and cl 67 of the draft site agreement conflicted with their rights under the Residential (Land Lease) Communities Act and the common law; and 2. did not give adequate reasons for rejecting that claim; 1. The Tribunal: 1. erred in rejecting Mr and Mrs McMillan's claim that the operator had engaged in misleading conduct and high pressure tactics, harassment and harsh and unconscionable conduct; and 2. did not give adequate reasons for rejecting that claim. 1. Mr and Mrs McMillan sought a number of orders from the Appeal Panel, including that clauses 34 to 67 of the site agreement (or at least clauses 45 and 67) be deleted; that the operators be penalised for wrongly threatening the residents with eviction; that the operators apologise and tell the residents they can remain in their residences without entering into the new site agreements; and that disciplinary action be taken against the operators. Extension of time 1. The appellants received the Tribunal's decision on 5 August 2020. They lodged their notice of appeal on 20 August 2020. 2. Rule 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW) ("NCAT Rules") relevantly provides that, in the case of an appeal from a decision under the Residential (Land Lease) Communities Act, an internal appeal must be lodged within 14 days from the day on which the appellant was notified of the decision to be appealed. 3. The day the appellants received the notice does not count in the reckoning of time, by operation of r 6(2) of the NCAT Rules. Accordingly, the day of 5 August 2020 does not count. However, the appeal was lodged on the fifteenth day after the day the appellants were notified of the decision, and they need an extension of time of one day to appeal. 4. Section 41 of the NCAT Act permits the Tribunal to grant an extension of time for the lodging of the appeal. 5. The discretion to grant an extension of time is unfettered under s 41, but it must be exercised judicially. It must also be exercised having regard to the statutory command in s 36 of the NCAT Act that the guiding principle for the NCAT Act "is to facilitate the just, quick and cheap resolution of the real issue in the proceedings" (see Di Salvo v Leung [2014] NSWCATAP 44 at [17]). 6. Relevant factors to the grant of an extension of time include the length of the delay; the reason for the delay; the extent of any prejudice suffered by the respondent; and whether the applicant for an extension of time has a fairly arguable case: Di Salvo v Leung [2014] NSWCATAP 44 at [21]; Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]. 7. Mr and Mrs McMillan appear to have been unaware that the appeal was filed one day late, as they ticked the box "No" next to the question "Do you require an extension of time?" on the Notice of Appeal. The respondent, in its reply, indicated that it accepted that the appeal was filed within time, and the issue was not raised at the hearing. 8. We infer, from this, that the reason that the appeal was filed one day late was that Mr and Mrs McMillan mistakenly considered that their appeal was within time. 9. We have decided to extend time, given that the delay was only one day, there is no prejudice to the respondent, and we consider that Mr and Mrs McMillan have a reasonably arguable case. In the circumstances, we are satisfied that strict compliance with the rules would work an injustice upon Mr and Mrs McMillan: Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2]; Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [19], [22]. Tribunal's jurisdiction 1. Mr and Mrs McMillan's application to the Tribunal was brought on the basis that they were "home owners" within the Residential (Land Lease) Communities Act. A "home owner" or "former home owner" is entitled to apply to the Tribunal under s 156(1) of the Residential (Land Lease) Communities Act. That subsection provides: "156 Applications to Tribunal relating to disputes (1) A home owner, former home owner or operator of a community may apply to the Tribunal for determination of any of the following— (a) a dispute relating to a right or obligation under this Act, (b) a dispute arising from, or relating to, a site agreement or collateral agreement, (c) any other matter that may be determined by the Tribunal under this Act." 1. Section 157(1) of the Residential (Land Lease) Communities Act confers jurisdiction on the Tribunal to make orders "on application by a party to a dispute or other matter before the Tribunal, or in any proceedings under" the Residential (Land Lease) Communities Act. 2. The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under the NCAT Act or any other legislation: NCAT Act, s 28(1). Further, by operation of s 29(1) of the NCAT Act, "The Tribunal has general jurisdiction over a matter if… legislation … enables the Tribunal to make decisions … of a kind specified by the legislation in respect of that matter" and the matter does not otherwise fall within certain other types of jurisdiction. It may be seen, then, that the Tribunal's general jurisdiction (the jurisdiction purportedly exercised by the Tribunal in this matter) depends upon legislation conferring upon it the power to consider a matter and make decisions in relation to the matter. 3. It is implicit in s 157(1) of the Residential (Land Lease) Communities Act that the "application" in respect of which the Tribunal may make orders is an application under s 156 (that is, an application made by a home owner, former home owner or operator of a community). It follows that, unless Mr and Mrs McMillan are "home owners" or "former home owners" the Tribunal did not have jurisdiction to consider their application and we would not have jurisdiction to determine their appeal (other than on the question of jurisdiction). 4. The term "home owner" is defined in s 4(1) of the Residential (Land Lease) Communities Act to mean: "(a) a person who owns a home on a residential site in a community that is the subject of a site agreement (whether or not the person resides at the site), or (b) a person who obtains an interest in a site agreement as the personal representative, or a beneficiary of the estate, of a deceased individual who, immediately before the individual's death, was a person mentioned in paragraph (a), or (c) another successor in title of a person mentioned in paragraph (a), but does not include any person, or any person of a class, excluded from this definition by the regulations." 1. The only relevant paragraph of this definition, on the evidence before the Appeal Panel, is paragraph (a). The Residential (Land Lease) Communities Regulation 2015 (NSW) does not exclude any person from this definition. 2. The respondent submitted, in its submissions to the Tribunal below: "The Act defines a Home Owner as 'a person who owns a home on a residential site in a community that is the subject of a Site Agreement'. There is no Site Agreement in place, as defined in the Act. Further, the advice we have received is that the McMillan 'home' is a fixture to the land and accordingly is not owned by them. The Application, therefore, is not well founded." 1. Mr and Mrs McMillan, in their reply below, stated that they owned and lived in the home in question. They also contended that, because the operators had asked them to sign a residential site agreement, that put "the RSA 'in play' and makes the matter subject to R(LL)C Act." 2. The Tribunal did not deal with the issue of its jurisdiction in its reasons. The respondent attempted to obtain a recording of the hearing before the Tribunal, but it was advised that the sound recording could not be provided due to an equipment malfunction. Accordingly, we do not know whether the Tribunal dealt with the jurisdictional issue at the hearing. 3. The respondent has not appealed from the Tribunal's decision. However, if a real issue as to jurisdiction suggests itself to the Tribunal, even if the parties do not take the point, it must be addressed: SAS Trustee Corporation v Rossetti [2018] NSWCA 68 at [3]; Federated Amalgamated Government Railway and Tramway Service Association v The New South Wales Railway Traffic Employees' Association (1906) 4 CLR 488 at 493-495; [1906] HCA 94; Cockle v Isaksen (1957) 99 CLR 155 at 161; [1957] HCA 85. 4. The Tribunal has not made sufficient findings of fact for us to be satisfied that the Tribunal had jurisdiction to hear and determine Mr and Mrs McMillan's application, in circumstances where the question of its jurisdiction was raised by the respondent. 5. The following questions arise in determining whether Mr and Mrs McMillan are "home owners" within s 4 of the Residential (Land Lease) Communities Act: 1. Did Mr and Mrs McMillan own a home on a residential site? 2. If so, was the residential site on which Mr and Mrs McMillan's home was located the subject of a site agreement? 1. We directed the Registrar to write to the parties, after the hearing, setting out the jurisdictional issue, and inviting them to file and serve any evidence and submissions on which they wished to rely. The Registrar also invited the parties to make submissions as to whether the Tribunal has power to make orders for the deletion of clauses in a draft site agreement. Both parties provided further evidence and submissions in response to this invitation. 2. The Registrar invited the parties to make submissions as to whether we could adequately determine the jurisdictional issues in the absence of the parties by considering the material provided by them. Neither party made any submissions on this point. 3. To the extent that it is necessary, we have decided to make an order under s 50(2) of the NCAT Act dispensing with a hearing in relation to the matters raised with the parties by the Appeal Panel after the hearing. We are satisfied that the relevant issues for determination can be adequately determined in the absence of the parties by considering the written submissions and other material lodged with the Tribunal. Do Mr and Mrs McMillan own a home on a residential site? 1. As to the first question, Mr and Mrs McMillan claim that they own the home on the site. The contract which they entered into with Coolah Home Base Pty Ltd in 2014 provided that the "Purchasers" (defined in the contract to be Mr and Mrs McMillan) would purchase and the "Vendor" (defined in the contract to be Coolah Home Base Pty Ltd) would sell the share for a numbered allotment at a specified address in the caravan park. It then stated that "[p]ayment for the purchase of" the specified allotment was to be made at a specified time. 2. The contract also stated that another company, Home Base Solutions Pty Ltd, would contract with a third party to construct and deliver a transportable home to the allotment. Home Base Solutions Pty Ltd is wholly owned and operated by the Directors. The contract did not identify the price of the cabin but stated that "[o]n completion of payment the Cabin is the property of the Purchasers." It also provided that a site fee of $53 per week was payable by Mr and Mrs McMillan. 3. Home Base Solutions Pty Ltd was not a party to the contract. 4. Mr and Mrs McMillan claimed, and we accept, that they paid $135,000 plus extras for the home which was installed on the allotment in 2015. They have provided us with a copy of the Constitution of Coolah Home Base Pty Ltd, which they say "made it clear that we owned the cabin." They did not identify which provision of the constitution established this. However, there are by-laws in Schedule 5 to the constitution which state that any dwelling or structure or fixture on the shareholder/residential site is the property of the shareholder. 5. The respondent claims that Mr and Mrs McMillan do not own the home, as it is a fixture to the land. It submits that the fixture (the cabin) became its property upon the purchase of the Land. It relies, in support of its contention that the cabin is a fixture, on a letter from its lawyers. The respondent has not provided any evidence to support that assertion. 6. Whilst there is limited evidence about this issue, the contract with Coolah Home Base Pty Ltd indicates that the cabin is a "transportable home." There is no evidence before us that the cabin was fixed to the land. 7. We also note that s 42(6) of the Residential (Land Lease) Communities Act provides: "A home located on a residential site is not, for any purpose, to be regarded as a fixture, regardless of the manner in which it is attached to the land. This subsection does not apply to a home that is owned by the owner of the community." 1. We are not persuaded the cabin is a fixture. 2. Further, whilst the position in relation to whether separate legal title may exist in fixtures is unclear (see Standard Portland Cement Co Pty Ltd v Good (1982) 2 NSWLR 668 (Privy Council) and TEC Desert Pty Ltd v Commissioner of State Revenue [2010] HCA 49; (2010) 241 CLR 576, several authorities confirm that it is possible for an equitable interest to exist in fixtures, separate to the legal title, without the need for them to be severed from the land on which they stand: Emanuel (Rundle Mall) Pty Ltd v Commissioner of Stamps (1986) 41 SASR 122; Melluish (Inspector of Taxes) v BMI (No 3) Ltd [1996] AC 454; Eastern Nitrogen Ltd v Commissioner of Taxation [2001] FCA 366; (2001) 108 FCR 27; Commissioner of Taxation v Metal Manufactures Ltd [2001] FCA 365; (2001) 108 FCR 150; Vopak Terminals Australia Pty Ltd v Commissioner of State Revenue [2004] VSCA 10; (2004) 12 VR 351. On that basis, even if we are wrong and the cabin is a fixture, Mr and Mrs McMillan may have retained ownership of it in equity after it was affixed to the land and the land transferred. 3. We do not consider that the home is "owned" by the respondent. As the directors were directors of both Coolah Home Base Pty Ltd and the respondent, it is more likely than not that the respondent has (at least) constructive knowledge of the contract between Coolah Home Base Pty Ltd and Mr and Mrs McMillan. The contract provides, as set out above, that the cabin is the property of Mr and Mrs McMillan. 4. The contract for the sale of the land on which the caravan park is situated, between Coolah Home Base Pty Ltd and the respondent, provides, on the first page that exclusions are "all improvements fittings and fixtures owned by a Shareholder." Clause 51.3 of the contract for sale provides: "The purchaser acknowledges that each Shareholder has constructed or holds, parks or places improvements on their Allotment. The vendor has no interest in the Shareholder Improvements (Shareholder Improvements) and the Shareholder Improvements are expressly excluded from the sale of the property." 1. Accordingly, we find that Mr and Mrs McMillan purchased and owned the cabin prior to the respondent entering into the contract for the sale of land and that that contract did not convey ownership of the cabin to the respondent. 2. The next issue is whether the cabin is a "home" within the Residential (Land Lease) Communities Act. The term "home" is defined in s 4(1) of that Act to mean: "(a) any caravan or other van or other portable device (whether on wheels or not) other than a tent, used for human habitation, or (b) a manufactured home as defined in the Local Government Act 1993, or (c) any conveyance, structure or thing of a class or description prescribed by the regulations for the purposes of this definition." 1. The word "device" is not defined in the Residential (Land Lease) Communities Act. The Oxford English Dictionary gives, as one of the meanings of "device", the following: "7. a. concrete. The result of contriving; something devised or framed by art or inventive power; an invention, contrivance; esp. a mechanical contrivance (usually of a simple character) for some particular purpose." 1. The Macquarie Dictionary defines "device" to mean, relevantly, "an invention or contrivance." 2. The word "other" in paragraph (a) of the definition of "device" in the Residential (Land Lease) Communities Act indicates that both a caravan and a van is a "device." We consider that a transportable home is a "portable device," being a portable invention or contrivance. There is no dispute that it is used for human habitation. Accordingly, we find that Mr and Mrs McMillan's cabin is a "home" within paragraph (a) of the definition in s 4(1) of the Residential (Land Lease) Communities Act. 3. A "residential site" is defined in s 4(1) of the Residential (Land Lease) Communities Act to mean "a site in a community for a home that is used, or is intended to be used, as a residence by an individual." There is no dispute that, if Mr and Mrs McMillan's cabin is a "home," it is on a site in a community and that the cabin is used as a residence for individuals. 4. It follows that Mr and Mrs McMillan own a home on a residential site within the Residential (Land Lease) Communities Act. Was Mr and Mrs McMillan's home the subject of a site agreement? 1. As to the second question, Mr and Mrs McMillan had not signed the site agreement provided to them by the respondent at the time of the Tribunal hearing or the Appeal Panel hearing. It is accepted by them that the site agreement provided to them on behalf of the respondent is a draft agreement. 2. Mr and Mrs McMillan say that they have a site agreement with the respondent on two bases. 3. First, Mr and Mrs McMillan rely upon a savings provision in cl 5(3) of Sch 2 to the Residential (Land Lease) Communities Act. They claim they had an agreement with Coolah Home Base Pty Ltd under the Residential Parks Act 1998 (NSW) (now repealed) which is taken, under cl 5(3), to be a site agreement. 4. Alternatively, Mr and Mrs McMillan say that the community was a retirement village to which the Retirement Villages Act 1999 (NSW) applied, and, by operation of s 11(2) and 40(1) of that Act, the agreements remain in force with the respondent becoming a party to them. Mr and Mrs McMillan state that there are proceedings in the Tribunal which will consider whether the community was a retirement village on 17 March 2021. 5. We will deal with the savings provision first. 6. Clause 5 of Schedule 2 to the Residential (Land Lease) Communities Act provides: "5 Existing agreements (1) Agreements entered into under the repealed Act that have not been terminated remain valid after the commencement of the relevant provisions of this Act. Note— Accordingly, an existing agreement continues without the need to sign a new agreement once this Act commences. (2) Without limiting subclause (1), a term of an agreement entered into under the repealed Act that provides for the increase of site fees by a fixed method (however expressed) remains in force after the commencement of the relevant provisions of this Act. (3) A residential site agreement, moveable dwelling agreement or NPWS agreement (other than an excluded agreement) in force immediately before the repeal of the repealed Act is taken, on that repeal, to be a site agreement between the resident (as or on behalf of the home owner) and the park owner (as operator of the community in which the home is located). (4) An excluded agreement in force immediately before the repeal of the repealed Act is taken, on that repeal, to be a tenancy agreement. (5) This clause does not validate a term of an agreement entered into under the repealed Act that was void under that Act. (6) In this clause— excluded agreement means a moveable dwelling agreement or NPWS agreement under which a resident occupies a home that is owned by the park owner. moveable dwelling agreement means an agreement of a kind referred to in clause 5(1)(c) or (d) of the Residential Parks Regulation 2006 as in force immediately before its repeal by this Act. NPWS agreement means an agreement of a kind referred to in clause 5(1)(e) of the Residential Parks Regulation 2006 as in force immediately before its repeal by this Act." 1. The "repealed Act" is the Residential Parks Act (see Residential (Land Lease) Communities Act, Sch 2, cl 2(1)). That Act was repealed on 31 October 2015. 2. In order to establish that their home is on a residential site which is the subject of a site agreement (for the purposes of the definition of "home owner"), by operation of cl 5(3) of Schedule 2, Mr and Mrs McMillan need to show that: 1. Their agreement with Coolah Home Base Pty Ltd was a "residential site agreement"; 2. It was in force immediately before 30 October 2015; 3. The agreement was not terminated. 1. There is no suggestion that Mr and Mrs McMillan's agreement with Coolah Home Base Pty Ltd was not in force immediately before 31 October 2015. We find that it was. The key question is whether that agreement was a "residential site agreement." The term "residential site agreement" is not defined in the Residential (Land Lease) Communities Act but, from the context, we take this to be a reference to a "residential site agreement" within the Residential Parks Act. 2. The term "residential site agreement" was defined in s 3(1) of the Residential Parks Act as follows: "residential site agreement means a residential tenancy agreement under which: (a) the park owner grants to the resident: (i) a right to install, on a residential site, a relocatable home, or a registrable moveable dwelling with a rigid annexe attached to it (being a relocatable home or registrable moveable dwelling owned by the resident), and (ii) a right to use the home or dwelling as a residence, and (b) the resident occupies the premises as the resident's principal place of residence, and (c) in the case of an agreement entered into after the commencement of section 5, the resident has the approval of the park owner or park manager to occupy the premises as the resident's principal place of residence, but does not include such a residential tenancy agreement with respect to land: (d) that is within a Crown reserve, if the agreement was entered into after 16 December 1994, unless it is an agreement arising from a lease or licence under section 102 of the Crown Lands Act 1989 to which the Minister administering that Act has granted consent, or (e) that is reserved or dedicated under the National Parks and Wildlife Act 1974." 1. Coolah Home Base Pty Ltd was the "park owner" within the Residential Parks Act (assuming that there was a residential tenancy agreement in place) because it granted Mr and Mrs McMillan the right to occupy the residential premises (Residential Parks Act, s 3(1)). Mr and Mrs McMillan were "residents" (Residential Parks Act, s 3(1)). 2. Mr and Mrs McMillan's agreement with Coolah Home Base Pty Ltd would be a "residential site agreement," within the Residential Parks Act, if: 1. The agreement was "a residential tenancy agreement" within the Residential Parks Act; 2. Coolah Home Base Pty Ltd granted to Mr and Mrs McMillan, under the agreement, the right to install a relocatable home on the residential site; 3. Mr and Mrs McMillan occupied the premises as their principal place of residence; 4. Mr and Mrs McMillan had the approval of Coolah Home Base Pty Ltd to do so; 5. The land was not within a Crown reserve or reserved or dedicated under the National Parks and Wildlife Act 1974 (NSW). 1. The satisfaction of the third to fifth criteria above is not, as we understand it, contentious. The key issues concern the first and second of these criteria. 2. There is a question as to whether the cabin was a "relocatable home." A "relocatable home" was defined in s 3(1) of the Residential Parks Act to mean: "a moveable dwelling that is not: (a) a registrable moveable dwelling, or (b) a moveable dwelling of a type prescribed by the regulations for the purposes of this paragraph." 1. A "moveable dwelling" was defined to include "any caravan or other van or other portable device (whether on wheels or not) other than a tent, used for human habitation" (Residential Parks Act, s 3(1)). As can be seen, this wording was incorporated into paragraph (a) of the definition of "home" in s 4(1) of the Residential (Land Lease) Communities Act. For the reasons given above, we find that the cabin was a "moveable dwelling." 2. A "registrable moveable dwelling" was defined in s 3(1) of the Residential Parks Act to mean "a moveable dwelling that is a motor vehicle, trailer or other registrable vehicle within the meaning of the Road Transport Act 2013." The cabin is not a "vehicle" and so was not a "registrable moveable dwelling." 3. The Residential Parks Regulation 2006 (NSW) did not prescribe any type of "moveable dwelling" for the purposes of paragraph (b) of the definition of "moveable dwelling" within s 3(1) of the Residential Parks Act. 4. We find that Coolah Home Base Pty Ltd, as the "park owner," granted to Mr and Mrs McMillan (the "residents") the right to install a relocatable home on a residential site and a right to use that home as a residence, under the contract between them. 5. The next question is whether there was a "residential tenancy agreement" between Coolah Home Base Pty Ltd and Mr and Mrs McMillan. A "residential tenancy agreement" was defined in s 3(1) of the Residential Parks Act to mean: "any agreement under which a person grants to another person for value a right of occupation of residential premises for the purpose of use as a residence: (a) whether or not the right is a right of exclusive occupation, and (b) whether the agreement is express or implied, and (c) whether the agreement is oral or in writing, or partly oral and partly in writing, and includes such an agreement granting the right to occupy residential premises together with the letting of goods." 1. The term "residential premises" was defined to include "a residential site on which a moveable dwelling is situated or intended to be situated (or both a moveable dwelling and residential site), if the moveable dwelling is used or intended to be used as a place of residence" (Residential Parks Act, s 3(1)). 2. Under the contract between Coolah Home Base Pty Ltd and Mr and Mrs McMillan, Coolah Home Base Pty Ltd granted to Mr and Mrs McMillan for value a right of occupation of the specified allotment (being a "residential site"). That was a residential site on which a moveable dwelling was intended to be situated. The moveable dwelling (the cabin) was intended to be used as a place of residence. 3. Accordingly, we find that Coolah Home Base Pty Ltd and Mr and Mrs McMillan had entered into a "residential tenancy agreement" within the Residential Parks Act. 4. It follows from the analysis above that the agreement between Coolah Home Base Pty Ltd and Mr and Mrs McMillan was a "residential site agreement" within the Residential Parks Act. 5. The residential site agreement between Coolah Home Base Pty Ltd and Mr and Mrs McMillan, made on 28 July 2014, was in force immediately before on the repeal of the Residential Parks Act on 31 October 2015. By operation of cl 5(3) of Sch 2 to the Residential (Land Lease) Communities Act, that agreement was taken to be a site agreement between Mr and Mrs McMillan and Coolah Home Base Pty Ltd from November 2015 onwards. 6. Section 52(1) of the Residential (Land Lease) Communities Act provides that, "[i]f another person becomes the operator of a community, the benefits and obligations under existing site agreements pass from the old operator to the new operator." 7. That would suggest that the respondent became subject to the agreement which Coolah Home Base Pty Ltd entered into with Mr and Mrs McMillan when it purchased the Land in late 2019. There is a question as to whether the respondent terminated the existing agreement by letter dated 2 December 2019 to Mr and Mrs McMillan when it informed them that their rights to use the land ceased at settlement on 18 December 2019. That letter was written on the assumption, which we find to be incorrect, that the Residential (Land Lease) Communities Act did not apply to the Land before the respondent's purchase of it. The respondent did not provide Mr and Mrs McMillan with a termination notice, as required by s 118 of the Residential (Land Lease) Communities Act and there is no suggestion that the Tribunal has made a termination notice in accordance with Div 3 of Part 1 of that Act. Accordingly, we find that the site agreement has not been terminated. 8. We consider, accordingly, that Mr and Mrs McMillan are both "home owners," being persons who own a home on a residential site in a community that is the subject of a site agreement. If the agreement with Coolah Home Base Pty Ltd was terminated after 1 November 2015, contrary to our view, then they are "former home owners." 9. In these circumstances, there is no need to deal with Mr and Mrs McMillan's submission that the community was a retirement village to which the Retirement Villages Act applied. Did the Tribunal have jurisdiction to determine particular disputes and matters? 1. The remaining jurisdictional issue is whether the Tribunal had jurisdiction to consider the disputes or matters the subject of Mr and Mrs McMillan's application to it. 2. As indicated above, the Tribunal has power, under ss 156 and 157 of the Residential (Land Lease) Communities Act (read together) to consider an application to it for determination of any of the following: 1. a dispute relating to a right or obligation under the Residential (Land Lease) Communities Act; 2. a dispute arising from, or relating to, a site agreement or collateral agreement; or 3. any other matter that may be determined by the Tribunal under the Residential (Land Lease) Communities Act. 1. One of the matters which Mr and Mrs McMillan asked the Tribunal to determine, in their original application to the Tribunal, is whether certain terms of the draft site agreement should be declared void on the basis of their inconsistency with the Residential (Land Lease) Communities Act. There is a question as to whether this is a dispute or matter which the Tribunal is entitled to determine (see NCAT Act, ss 28, 29 and Residential (Land Lease) Communities Act, s 156(1)). This is relevant to appeal grounds 1 and 2, because these grounds challenge the Tribunal's determination of the parties' dispute about the terms of the proposed site agreement. 2. There is also a question as to whether the Tribunal had power to consider making an order requiring the respondent to refrain from conduct in breach of the rules of conduct for operators. That is relevant to the third appeal ground. 3. The question of jurisdiction will be considered in relation to each of these grounds. First Ground – Whether Tribunal had power to make orders 1. Mr and Mrs McMillan's first ground of appeal is that the Tribunal erred in making an order under 27(5) of the Residential (Land Lease) Communities Act because Mr and Mrs McMillan had not applied for an order to enter into a site agreement. This ground raises a question of law, being whether the Tribunal made an order without power to do so and whether it misdirected itself as to the application before it. Accordingly, Mr and Mrs McMillan may appeal on this ground as of right. 2. The jurisdictional issue arises because there is a question as to whether a dispute about a draft site agreement is a dispute relating to a right or obligation under the Residential (Land Lease) Communities Act, a dispute arising from, or relating to, a site agreement or collateral agreement, or any other matter that may be determined by the Tribunal under the Residential (Land Lease) Communities Act (within s 156(1) of that Act). Whilst we have found that there was a site agreement between these parties, there was no application in respect of that agreement. 3. We will consider, below, the question of whether the dispute relates to a right or obligation under the Residential (Land Lease) Communities Act. 4. The second basis upon which the Tribunal may consider the dispute about the draft site agreement is if it is a dispute arising from, or relating to, (relevantly) a site agreement. The definition of "site agreement," in s 4(1) of the Residential (Land Lease) Communities Act, is "an agreement under which the operator of a community grants to another person for value a right of occupation of a residential site in the community." On one view, the draft agreement is not an "agreement" because its terms have not been agreed. On its face, a "site agreement" refers to an agreement which is in force, and under which a right of occupation is granted. 5. Mr and Mrs McMillan submit that the Tribunal has power to order the making of changes to a draft site agreement which is not in force. If this were so, that would be a reason for reading "site agreement" in s 156(1) of the Residential (Land Lease) Communities Act, to include a draft site agreement. 6. Mr and Mrs McMillan point to the terms of s 28 of the Residential (Land Lease) Communities Act in support of their contention that a "site agreement" includes a draft site agreement. They say that the reference in s 28(1) to a "standard form of site agreement" suggests that it applies to a draft agreement. That argument is not persuasive. The word "form" indicates that a particular form of agreement may be prescribed. That does not indicate that the standard form of site agreement is a "site agreement" within the Act, prior to the parties agreeing to enter into it. So much is apparent from the references in s 27(3) and (5) to persons "entering into" a site agreement which is (or is not in) the standard form. 7. Mr and Mrs McMillan submit that, if s 28(2) of the Residential (Land Lease) Communities Act only applied to agreements which were in force, "it would be misleading for the draft standard form to include terms which became void on execution." Section 28(2) provides: "(2) The Tribunal— (a) may, on application by a home owner or operator of a community, make an order declaring an additional term is void on being satisfied that the additional term contravenes subsection (1), and (b) may, by the same order, prohibit either or both of the following— (i) the current operator or any future operator of the community from using the same or a similar term in any future site agreement entered into in connection with the community while the community remains in the same ownership, (ii) the current operator from using the same or a similar term in any future site agreement entered into in connection with any other community being operated by the operator." 1. Subsection 28(2) does not provide for any terms contained in the standard form to become void on execution. Rather, s 28(2)(a) provides for the Tribunal to declare void an "additional term" (that is, a non-standard term) and s 28(2)(b) authorises the Tribunal to prohibit an operator for using the same term in future. Although s 28(2)(b) is directed to terms in agreements which have not yet been entered into, the relevant dispute must be, in our view, a dispute as to whether an additional term (being a term which is in force) should be declared void. We accept the respondent's submission that a clause in an unexecuted agreement could not be declared void because it does not have any legal existence or effect. 2. The Tribunal also has a power to effectively change the terms of a site agreement under s 27(5) of the Residential (Land Lease) Communities Act, which provides: "(5) The Tribunal may, on application by a home owner under a site agreement that is entered into after the commencement of this section and is not in the relevant standard form, order the operator to prepare and enter into a site agreement that is in the relevant standard form." 1. It is plain from the language of s 27(5) that an agreement must have been "entered into" before any application to the Tribunal may be made. Accordingly, it does not apply to draft agreements, or provide power to the Tribunal to order the operator to enter into an agreement other than in the standard form. Here, whilst we are satisfied, as set out at [100], that there is a site agreement between these parties, it is not alleged that it is not in the relevant standard form. Nor was the Tribunal's order for an agreement in standard form to be entered into. 2. Section 29(4) of the Residential (Land Lease) Communities Act provides for applications to be made to the Tribunal to consider whether a specified term of a site agreement is void for being a prohibited term. However, the language employed in both s 29(4) and (5), including references to the Tribunal declaring a term to be void and varying a term of the agreement, are not apt to apply to draft agreements. 3. We reject Mr and Mrs McMillan's submission that the term "site agreement" includes a draft site agreement. The ordinary meaning of "site agreement" requires the parties to have reached an agreement. 4. The respondent submitted, in relation to Mr and Mrs McMillan's first appeal ground, that s 157(1)(j) of the Residential (Land Lease) Communities Act conferred jurisdiction on the Tribunal to make its first order if s 27(5) of that Act did not. We will consider this submission insofar as it is relevant to the jurisdictional issue. 5. Section 157(1) of the Residential (Land Lease) Communities Act provides, relevantly: "157 Orders that may be made by Tribunal (1) The Tribunal may, on application by a party to a dispute or other matter before the Tribunal, or in any proceedings under this Act, make one or more of the following orders— … (j) an order for anything else necessary or desirable to resolve a dispute." 1. Paragraph 157(1)(j) does not give the Tribunal to make an order in relation to any dispute between the parties, irrespective of the other provisions of the Act. Rather, it is a power in relation to a dispute the Tribunal has jurisdiction to deal with on an application under s 156(1). This may be inferred from the opening words of s 157(1) which refer to an "application by a party to a dispute or other matter before the Tribunal." Further, given that s 27(5) expressly confers power on the Tribunal to order an operator to prepare and enter into a site agreement that is in the relevant standard form, the more general power in s 157(1)(j) is to be read subject to the limitations in the more specific power in s 27(5). 2. We find that Mr and Mrs McMillan's application to the Tribunal for additional terms of the draft agreement "to be deleted or declared void" is not: 1. a dispute relating to a right or obligation under the Residential (Land Lease) Communities Act; 2. a dispute arising from, or relating to, a site agreement or collateral agreement; or 3. any other matter that may be determined by the Tribunal under the Residential (Land Lease) Communities Act. 1. It follows that the Tribunal did not have power to determine the parties' dispute about the proposed terms of the site agreement. It erred in making both of its orders, which are set out above, and which purported to determine that dispute. 2. On this basis, we have decided to allow the appeal, insofar as it relates to the orders made by the Tribunal, and to set aside the Tribunal's orders. The appeal is allowed, even though we have not considered the merits of Mr and Mrs McMillan's first ground of appeal, because the appeal is from the Tribunal's orders and, in light of the Tribunal's lack of power to make those orders, they cannot stand. Second ground: rejection of claim in relation to clauses of proposed agreement 1. In light of our decision in relation to the first ground of appeal, it is not necessary to consider this ground. The orders which are challenged, and to which this ground relates, are set aside. Third ground: Claim of misleading conduct and high pressure tactics 1. Mr and Mrs McMillan's third ground of appeal is that the Tribunal erred in rejecting their claims that the operator had engaged in misleading conduct and high pressure tactics, harassment and harsh and unconscionable conduct and did not give adequate reasons for this. 2. The question of whether the Tribunal gave adequate reasons for its decision is a question of law. Mr and Mrs McMillan do not need leave to appeal on the ground we have called "Ground 3(b)". They do, however, need leave to appeal on "Ground 3(a)" which is, in essence, a contention that the Tribunal's rejection of their claims was against the weight of evidence. Jurisdictional issue 1. There is, however, a preliminary question as to whether the Tribunal had jurisdiction to make the order sought in relation to the alleged use of high pressure tactics, being that "the Operators cease and desist using pressure tactics when dealing with existing and potential home owners." The Tribunal may only make orders between the parties, and so did not have power to make the order in the terms sought. We have considered, though, whether the Tribunal had power to make an order requiring the respondent to stop "using pressure tactics" in relation to Mr and Mrs McMillan. 2. The contravention of a rule of conduct, without reasonable excuse, is an offence (Residential (Land Lease) Communities Act, s 54). 3. We consider that the Tribunal has power to make an order requiring an operator to cease or to refrain from engaging in high pressure tactics, harassment or harsh or unconscionable conduct, under s 157(1) of the Residential (Land Lease) Communities Act. That provision authorises the Tribunal, relevantly, to make "an order that restrains an action in breach of this Act." Ground 3(b) - Adequacy of reasons 1. It appears that the Tribunal gave written reasons for decision in this case without being requested to do so. There is an issue as to whether, in such circumstances, the Tribunal has an obligation to give any reasons, including adequate reasons: see New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231; (2019) 100 NSWLR 578, Bell P at 593 [54]-[55] and Ward JA at 603 [110]-[111]. It is not necessary to explore that issue because, even if the Tribunal was obliged to provide adequate reasons, the appellants have not demonstrated that it failed to comply with that obligation. 2. The Tribunal's reasons on the question of whether the respondent engaged in high pressure tactics, harassment or harsh or unconscionable conduct were given in fairly general terms. The Tribunal commented that its review of the available evidence did not establish to the required evidentiary standard that the respondent had engaged in such conduct. It found as follows: "12 There has been disagreement and a series of communications and interactions between the parties which have not all been positive or harmonious and which relate to the events which have surrounded the liquidation of the previous corporate operator; further to this of course, the respondent has indicated that it requires the applicant to enter into a new Site Agreement which the applicant objects to. … 14 Apart from the general assertion made by the applicants, there are no proven instances of associated behaviour on the part of the respondent which can be reasonably accepted upon consideration of the evidence before the Tribunal as comprising high pressure tactics used towards the applicants, harassment of them, or harsh or unconscionable conduct towards them." 1. Mr and Mrs McMillan submitted that the Tribunal failed to give reasons for rejecting evidence showing that the operators modified a paragraph in what was presented as the standard disclosure statement to misrepresent that the cooling off period would not apply to them as pre-existing residents, falsely told residents that their houses now belong to the operator, pressured residents to sign new residential site agreements on the "deceptive" assurance that by doing so their houses would become theirs again and falsely told residents that they have to sign new residential site agreements or be evicted. 2. The relevant principles concerning the adequacy of reasons are set out in the decision of Bell P in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231; (2019) 100 NSWLR 578 ("Orr") at [65]-[77]. The circumstances that the reasons are those of a tribunal, and not a court, is relevant to the level of detail required (Orr at [68]; Wilson v Brisbane; Wilson v Chan and Naylor Parramatta Pty Ltd [2019] NSWSC 1598 at [97]). The Tribunal is not required to deal with every aspect of the evidence. 3. The Tribunal was required to explain its actual path of reasoning in sufficient detail to enable a court to see whether its opinions involved an error of law (Wilson v Brisbane; Wilson v Chan and Naylor Parramatta Pty Ltd [2019] NSWSC 1598 at [101]; Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 at [55]). 4. We consider that the Tribunal's failure to deal individually with each of the matters raised by Mr and Mrs McMillan in its reasons did not render its reasons inadequate. It explained its reasons in sufficient detail for us to determine whether its opinions involved error. 5. Ground 3(b) is dismissed. Ground 3(a) - Merits of the decision 1. Leave is required to appeal on Ground 3(a), which challenges the merits of the Tribunal's decision. 2. We are not persuaded that the decision not to make a restraining order was against the weight of evidence, within cl 12(1) of Sch 4 to the NCAT Act. It has been said that the relevant test is whether the evidence so strongly preponderates in favour of the appellant that it leads to the conclusion the Tribunal either wilfully disregarded the evidence or failed to appreciate and understand the evidence: Mitry v Zoom Relocations Group Pty Ltd [2018] NSWCATAP 88 at [17], Anderson v Armitage [2014] NSWCATAP 72 at [54]-58]. That is not the case here. The reasons, referred to at [132] above, accurately reflect the evidence of robust and at times, acrimonious negotiations between the parties. Within the scope of that evidence, the Tribunal's finding was reasonably open to it. 3. Even if the decision were against the weight of evidence, contrary to our view, we do not consider that the appellant may have suffered a substantial miscarriage of justice because of the Tribunal's decision. 4. For these reasons, we refuse to grant leave to appeal on Ground 3(a). Respondent's costs application 1. The respondent submitted, in its submissions filed after the hearing in response to us raising the jurisdictional issue, that it should be awarded costs. The basis on which it asked for costs is that it raised the jurisdictional issue in the Tribunal below. 2. The issue of jurisdiction was not raised by the respondent on appeal in its written material filed before the hearing or at the hearing. Instead, the respondent reiterated and developed submissions made at first instance after we raised the question of jurisdiction. 3. The general rule is that "[e]ach party to proceedings in the Tribunal is to pay the party's own costs" (NCAT Act, s 60(1)). 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" (NCAT Act, s 60(2)). 4. We are not satisfied that there are special circumstances which warrant an award of costs in this case. The jurisdictional issue was complex and, even when prompted, the respondent did not provide any evidence to support its case that the cabin was a fixture. We have decided the issue of jurisdiction partly against the respondent, and have found in its favour for reasons other than those on which it relied. 5. We do not consider that it was unreasonable for the appellants to commence and prosecute their appeal. As the respondent conceded, they had not made an application under s 27 of the Residential (Land Lease) Communities Act and the Tribunal's first order was made on the erroneous premise that they had done so. Had we found that the Tribunal had jurisdiction in relation to the terms of the draft site agreement, we would likely have granted the appellants relief. 6. For these reasons, the respondent's costs application is dismissed. Conclusion 1. We have allowed the appeal from the Tribunal's orders on the basis that the Tribunal had no power to make those orders. Whilst the appeal is allowed to this extent, we have not made the orders sought by the appellants (deleting or declaring void particular terms of the draft site agreement), because neither the Tribunal nor the Appeal Panel has power to do so. 2. We have rejected the appellants' other grounds of appeal, including the ground concerning their claim that the respondent had engaged in misleading conduct, high pressure tactics, harassment or harsh and unconscionable conduct. Orders 1. We make the following orders: 1. Time for lodging the appeal is extended to 20 August 2020. 2. A hearing is dispensed with in relation to the matters raised with the parties after the conclusion of the hearing. 3. The orders made by the Tribunal are set aside. 4. In substitution for the Tribunal's decision, the application is dismissed. 5. The respondent's costs application 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: 24 March 2021