Civil and Administrative Tribunal New South Wales Medium Neutral Citation: INA Operations Pty Ltd ATF INA Operations Trust #6 t/as Ingenia Holidays v Shojai [2024] NSWCATAP 162 Hearing dates: 26 March 2024 Date of orders: 21 August 2024 Decision date: 21 August 2024 Jurisdiction: Appeal Panel Before: G Sarginson, Senior Member J McAteer, Senior Member Decision: The appeal is dismissed. Catchwords: APPEALS---words and phrases---uncollected goods---Uncollected Goods Act 1995 (NSW)---home in a community under the Residential (Land Lease) Communities Act 2013 (NSW)---whether home is uncollected goods Legislation Cited: Civil and Administrative Tribunal Rules 2014 (NSW) Fair Trading Legislation Amendment (Miscellaneous) Act 2018 (NSW) Local Government Act 1993 (NSW) Residential (Land Lease) Communities Act 2013 (NSW) Residential Parks Act 1998 (NSW) Uncollected Goods Act 1995 (NSW) Uncollected Goods Regulation 2020 (NSW) Cases Cited: Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 Boreland v Brewis [2024] NSWCATAP 140 Collins v Urban [2014] NSWCATAP 17. Ferella & Anor v Chief Commissioner of State Revenue [2014] NSWCA 378 Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315; Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 23 Kudrynski v Orange City Council [2024] NSWCA 33 Lieschke v Lieschke [2023] NSWCA 241 New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220 Power Rental Op Co Australia, LLC v Forge Group Power Pty Ltd (in liq) (receivers and managers appointed) [2017] NSWCA 8 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 PricewaterhouseCoopers Legal v Perpetual Trustees Victoria Limited & 3 Ors [2007] NSWCA 271 Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597 Sengos v Hassan [2022] NSWCATAP 366 Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 TNT Building Trades Pty Ltd v Baker [2023] NSWCATAP 178 Volkswagen Group Australia Pty Ltd v Saad [2022] NSWCATAP 133 Whear v Kids on Hayes Street Pty Ltd [2021] NSWCATAP 123 Wollondilly Shire Council v Styles [2024] NSWCATAP 104 Texts Cited: Cambridge Dictionary Macquarie Dictionary Sackville & Neave Australian Property Law 10th edition (2016) Category: Principal judgment Parties: INA Operations Pty Ltd ATF INA Operations Trust #6 t/as Ingenia Holidays (Appellant) Gulam Quadir Shojai (Respondent) Representation: Mr S Watson (Operations Manager) (Appellant) Respondent (self-represented) File Number(s): 2023/00465619 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 01 December 2023 Before: P Zammit, General Member File Number(s): 2023/00373521 REASONS FOR DECISION 1. This is an appeal from a decision of the Tribunal dismissing an application by an operator under the Residential (Land Lease) Communities Act 2013 (NSW) (RLLC Act) to sell the dwelling of a home owner under the Uncollected Goods Act 1995 (NSW) (UG Act), and credit the proceeds of sale towards outstanding site fees. 2. The appellant is the operator and the respondent is the former resident and current home owner under the RLLC Act. 3. On 1 December 2023, the Tribunal dismissed the appellant's proceedings. Concise written reasons were provided. The Tribunal found that the dwelling was not "uncollected goods" within the meaning of s 5 of the UG Act. 4. The appeal was filed on 22 December 2023 which is within the prescribed time period under r 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW). 5. At the appeal hearing, Mr Watson (operations manager) and Ms Scott (senior property manager) appeared for the appellant. The respondent appeared self-represented. 6. In this decision, any reference to "the operator" is a reference to the appellant. Background 1. Under the applicable provisions of the RLLC Act, a "home owner" owns the "home," but leases the land upon which the home sits from the operator and pays rent (site fees) for the right to occupy the site. 2. On 14 April 2014, the respondent entered into a residential site agreement with the predecessor operator of the holiday park. 3. The dwelling was located at No 13A of the holiday park. It is described in a valuation report obtained by the operator dated 23 November 2022 as follows: "…a prefabricated, modular home of approx. 75 sqm and comprising 2 bedrooms; kitchen; bathroom/laundry and living room. There is additionally a non-standard lean to carport on the south side of the premises." 1. On 27 November 2020, the operator obtained an order from the Tribunal that the respondent pay rent arrears. 2. Between November 2021 and November 2022 there was correspondence between the parties about the issue of rent arrears; and negotiations between the parties about the operator purchasing the home. On 30 May 2022, the operator made an offer to purchase the home, less the amount of arrears at the settlement date, or in the alternative act as agent for the respondent to sell the home, with a sales commission to be charged and all rent arrears (and utility arrears) paid on the date of settlement. That offer was based on valuation reports being obtained. 3. In October 2022; November 2022; and August 2023 the operator obtained valuation appraisals from real estate agents in respect of the value of the home and the likely rent the home would attract. On 14 August 2023; 15 August 2023; and 12 September 2023 the respondent obtained valuation appraisals. There was a substantial monetary difference between the valuations obtained by the operator and those obtained by the respondent. There was no agreement between the parties regarding sale of the home; nor did the respondent rent out the home. 4. In 2023, the operator took proceedings in the Tribunal to terminate the site agreement for non-payment of rent. 5. On 9 August 2023, the Tribunal made an order to terminate the site agreement for non-payment of rent, with vacant possession of the site to be given on or before 16 August 2023. The respondent was additionally ordered to pay the operator $41,985.31 for rent arrears. 6. On 12 September 2023, the operator enforced a warrant of possession with NSW Sherriff's Office, and the locks on the home were changed. 7. The respondent lodged an appeal to the Appeal Panel from the decision of the Tribunal to terminate the site agreement and for payment of rent arrears. 8. On 22 November 2023 (with a s 63 NCAT Act amendment dated 24 November 2023), the Appeal Panel dismissed the respondent's appeal, other than in respect of varying the order to pay rent arrears from $41,985.31 to $32,072.35. 9. On 29 September 2023, the operator filed proceedings in the Tribunal. In that application, the operator asserted that there were some goods left in the home. Those goods were shoes; clothing; hose; gardening equipment; lamp; kitchen items; extension cord; couch and two lounge chairs. The operator estimated the total value of those goods was approximately $4,000. 10. The operator identified that the following orders were sought: 11. We request orders for the following: a. An order authorising the sale of uncollected goods; b. An order as to the manner of sale of uncollected goods; c. An order as to the payment of the proceedings of sale of uncollected goods. The Applicant requests that the Tribunal make an Order to allow the Operator to list the dwelling for sale, and proceeds from the sale for the dwelling to be paid towards the outstanding fees to date and reasonable costs associated with the sale for the marketing and commissions. The daily rate for site fees continues to accrue and at the date of this application overdue site fees amount to $44,348.57. Any funds left over will be paid to a nominated account by the respondent, within 14 days of settlement. Note: The appraisals for the dwelling have been provided for the dwelling only and do not include the site that the dwelling occupies." 1. The Tribunal proceedings were listed for a Conciliation and Group List (Hearing) on 1 November 2023. Procedural directions were made for the parties to file and serve documentary evidence. The matter was set down for a final hearing. 2. As discussed previously on 1 December 2023 the Tribunal dismissed the application, with written reasons provided. 3. Although there was reference in the Tribunal application to some movable goods being left within the home, the focus of the operator in the Tribunal proceedings, and in the appeal, was the issue of the operator being able to sell the home itself. Decision of the Tribunal Under Appeal 1. The Tribunal noted that the operator sought to arrange sale of the home via a real estate agent and for the operator to retain monies owed from the proceedings of sale. The reasons of the Tribunal make no reference to any separate orders being sought in respect of the purported goods and belongings of the respondent left within the home. 2. The Tribunal noted the respondent sought orders (although he had not filed any proceedings himself listed for hearing on 1 December 2023) that he control the sale of the home by appointing his own real estate agent; and that after the home was sold he would then pay monies to the operator to satisfy any arrears debt. The reasons also state that both parties had provided documentary evidence regarding valuation of the home, and that "there was approximately a $200,000 variant between each party's valuation of the property". 3. After setting out the provisions of s 5 of the UG Act, the Tribunal stated as follows: 12. It is evident from the presence of the respondent at the hearing today, and from the evidence of the respondent that he has attempted to liaise with the applicant regarding the sale of the property, that the operator cannot reasonably hold the belief that the goods have been abandoned or left behind on the premises. 13. The issue of contention between the parties is how the property is to be sold and what the value of the property is. The application is a misconceived application under the Uncollected Goods Act and the parties may consider whether an application pursuant to the Residential (Land Lease) Communities Act 2013 needs to be made with the Tribunal to resolve the sale of the home. 14. The application is dismissed as the home is not an uncollected good in accordance with the definitions provided in the Uncollected Goods Act. Grounds of Appeal 1. The Notice of Appeal filed on 22 December 2023 stated the appellant was not seeking leave to appeal. 2. As discussed previously, the Notice of Appeal specifically identified that the operator was not seeking leave to appeal under s 80 of the NCAT Act and cl 12 of sch 4 of the NCAT Act. Accordingly, to succeed on in the appeal, the operator must establish an error on a question of law. 3. Seven grounds of appeal are identified. The grounds are expressed as follows: 1. The Tribunal "erred in law" by "misinterpreting and misapplying" the words "left behind" in s 5(2)(b) of the UG Act and finding that the home was not an "uncollected good". 2. The Tribunal "erred in law" in its finding at paragraph [12] of the reasons that the operator could not reasonably believe the goods had been "left behind" by (a) taking into account an irrelevant consideration; (b) failing to take into account or not giving sufficient weight to the operator's evidence; (c) giving "too much weight" to the evidence of the respondent. 3. Failure to provide adequate reasons. 4. Finding that "the parties had agreed to a method of disposal of the home" because "there was no evidence to support that fact." 5. Finding that the UG Act "does not apply to uncollected goods where agreement on a method of disposal is reached but where an argument exists in respect of the value, contrary to s 6(1) of the UG Act. 6. Failure to provide procedural fairness. The purported failure is identified was allowing the respondent to rely on evidence served by the respondent at the hearing; and not allowing the operator to rely on evidence in response. 7. Referring the parties to the RLLC Act to "resolve the sale of the home" when it was an uncollected good within the meaning of the UG Act. Documents and Submissions of the Operator 1. The matter was listed for a call-over in the Appeal Panel on 24 January 2024. Procedural directions were made for the preparation of the appeal. 2. Relevantly, the operator was directed to file and serve written submissions in support of the appeal; any documentary evidence before the Tribunal at first instance; any fresh evidence the operator sought leave to rely upon in the appeal and: (d) If oral reasons were given and/or what happened at the hearing at first instance is being relied upon by the Appellant in the appeal, a typed transcript of the relevant parts of the hearing, together with a sound recording of the entire hearing. 1. On 19 February 2024, the operator file a bundle of documents headed "Notice of Appeal-Summary and Relevant Documents". When filing the appeal, the operator had also attached a bundle of documents with an index "supporting documents." 2. However, the documents and submissions of the operator did not contain a written outline of submissions setting out the legal arguments (and legal authorities) relied upon by the operator; nor did it contain any sound recording or transcript of the hearing. 3. In accordance with s 38(5)(c) of the NCAT Act, the operator was given leave to put forward oral submissions at the appeal hearing. However, the absence of an outline of written submissions did not assist the operator. 4. The failure of the operator to provide a sound recording and transcript of the Tribunal hearing also did not assist the operator, particularly where one of its grounds of appeal involved a denial of procedural fairness. The operator is the appellant who bears the onus of establishing an error on a question of law, and also bears the consequences of failing to provide a sound recording or transcript (Whear v Kids on Hayes Street Pty Ltd [2021] NSWCATAP 123 at [25]; Sengos v Hassan [2022] NSWCATAP 366 at [42]-[43]). 5. The documents of the operator relevantly included the documents that were provided to the Tribunal at first instance; including the residential site agreement; the statement of account with the respondent (although this was updated to November 2023); photographs of the home; valuations obtained by the operator; previous orders of the Tribunal; and email correspondence between the parties. The operator also provided the Fair Trading Legislation Amendment (Miscellaneous) Act 2018 (NSW) (which contained amendments to the UG Act); and the NSW Parliament second reading speeches involving that legislation. Documents of the Respondent 1. In addition to the reply to appeal, the respondent also filed and served submissions and documents with the Appeal Panel on 1 March 2024 and 15 March 2024. The submissions were responsive to each ground of appeal identified; and the documents relevantly included photographs of the home; emails between the parties; valuations obtained by the respondent; financial records of the respondent; and a medical report. It appears most, if not all, of those documents were in evidence before the Tribunal, but there was some ambiguity as to whether fresh evidence not before the Tribunal was sought to be relied upon. Scope and Nature of Appeals 1. To succeed in an appeal, an appellant must demonstrate either an error by the Tribunal below on a question of law, which may be argued as of right; or that permission (that is, "leave") to appeal should be granted to bring the appeal: NCAT Act, s 80(2). 2. An appellant to an internal appeal brought under s 80(2)(b) of the NCAT Act must identify with precision a question of law said to be raised by the appeal: Ferella & Anor v Chief Commissioner of State Revenue [2014] NSWCA 378 at [6], [22]; Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13]. Whether a question is one of law must be approached as a matter of substance: Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 at [62](6), [94], [203]; Kudrynski v Orange City Council [2024] NSWCA 33 at [50]. 3. Each such question must be a pure question of law (adopting what was said in Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220 (Cobar) at [44], [49]; and Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 at [71], albeit in relation to different statutory provisions). In Cobar at [109] it was said by Bathurst CJ and Bell P (as the Chief Justice then was) with Garling, Johnson and Lonergan JJ agreeing: "Those questions of law should be, in our opinion, what are sometimes described as 'pure questions of law.' They should not draw the Court of Criminal Appeal into questions of fact. Moreover, they must be questions whose character as a question of law can be recognised on the face of the question, and not depend upon the answer given to the question. This does not include a question which may ultimately disclose an error of law depending on an analysis of the facts but where this cannot be known without scrutiny of the facts." 1. The principles governing an application for leave to appeal under the NCAT Act are well-established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17. They are the same principles applied by the courts. It is only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal that leave will be granted. Ordinarily it is appropriate to grant leave where there is an issue of principle, a question of public importance or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable: Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597 at [28]. As explained in Collins v Urban at [84], it is not sufficient merely to show that the Tribunal below was arguably wrong or that there was a bona fide challenge to an issue of fact. 2. Further, the circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division of this Tribunal under s 80(2)(b) of the NCAT Act are limited to those set out in cl 12(1) of Sch 4 to the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: (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). 3. In Collins v Urban, the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12 (1) of Sch 4 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. The wrong application of the correct legal principles to the facts is an error of mixed fact and law for which leave to appeal is required under s 80(2)(b) of the NCAT Act (TNT Building Trades Pty Ltd v Baker [2023] NSWCATAP 178 at [42]-[43] and the authorities cited therein). 2. Examples of pure questions of law include: 1. Denial of procedural fairness (Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13](4)); 2. A constructive failure to exercise jurisdiction, which includes the failure to consider and address a material issue raised by a party in the proceedings that is within the jurisdiction of the Tribunal to determine (Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 at [8]-[12] and [413]). This category of error also includes a failure by the Tribunal to engage with a clearly articulated argument put to it. 3. Acting on the application of the wrong legal principle which materially affected the outcome (Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 at [38]-[53]). 4. There was no evidence to support a factual finding (Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 23 at [91]) 1. As discussed previously, the operator did not seek leave to appeal. Accordingly, our focus is whether an error on a question of law has been established. Consideration 1. Before we turn to the grounds of appeal and the provisions of the UG Act, it is important to acknowledge that the RLLC Act contains provisions dealing with the sale of a home in a holiday park. Those provisions are set out in Part 10 of the RLLC Act. It is also appropriate to refer to the powers of the Tribunal in respect of making orders for termination and possession. 2. Section 3 of the RLLC Act sets out the objects of the Act. They include setting out particular rights of home owners and operators (s 3(b)); and establishing procedures for the resolution of disputes between home owners and operators (s 3(d)). 3. Section 104(1) of the RLLC Act states that Part 10 applies to " a home owned by a home owner or former home owner that is located on a residential site in a community" (emphasis added). 4. Under s 4(a) of the RLLC Act, a "home owner" means "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)". A "home" is defined in s 4 as: (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. "Manufactured home" is defined in the Dictionary to the Local Government Act 1993 (NSW) as: manufactured home means a self-contained dwelling (that is, a dwelling that includes at least one kitchen, bathroom, bedroom and living area and that also includes toilet and laundry facilities), being a dwelling— (a) that comprises one or more major sections, and (b) that is not a motor vehicle, trailer or other registrable vehicle within the meaning of the Road Transport Act 2013, and includes any associated structures that form part of the dwelling. 1. Under s 105(1) of the RLLC Act, a home owner " is entitled to sell the home while the home is located on the residential site". Section 105(2) and (3) deal with the notice that the home owner is required to give the operator that the home is being put up for sale. 2. Section 107 of the RLLC Act relevantly states: 107 Interference with right to sell home (1) The operator of a community must not cause or permit any interference with, or any attempt to interfere with— (a) a home owner's right to sell a home, or (b) a home owner's right to display a "for sale" sign in or on a home. Maximum penalty—100 penalty units. (2) Without limiting subsection (1)— (a) interference with a home owner's right includes hindering the exercise of the right, and (b) interference with a home owner's right to sell a home includes unreasonably restricting prospective home owners from inspecting the home or any common area of the community, and (c) interference includes making false or misleading statements about the community that affect or may affect either right, and (d) interference includes taking any action to require the home owner to comply with any requirement made by or under the Local Government Act 1993 after becoming aware that the home owner is seeking to sell his or her home (unless the matter has been the subject of previous action). 1. Sections 107(3) and (4) of the RLLC Act deal with circumstances where the operator is not interfering with the right to sell the home if the operator declines to enter into a site agreement with a prospective home owner and does so on reasonable grounds. Section 109 of the RLLC Act deals with a prospective purchaser or prospective home owner under a contract requesting the operator enter into a new site agreement. 2. Sections 112-114 deal with the appointment of an agent to sell the home. Section 112 states: 112 Appointing a selling agent (1) A home owner may appoint the operator of the community or another person as a selling agent to sell, or to negotiate the sale of, the home. (2) An operator cannot require a home owner— (a) to appoint the operator or any other person as selling agent, or (b) to use the services of the operator or any other person, in connection with the sale or negotiation of the sale of the home, either under the terms of the site agreement or otherwise. Such a requirement is unenforceable. (3) If the home owner appoints a person other than the operator as selling agent, the operator must not unreasonably hinder the appointed person's access to the community. Maximum penalty—50 penalty units. (4) When the operator acts as a selling agent, the operator is not required to hold— (a) a licence as agent under the Property and Stock Agents Act 2002, or (b) a motor dealer's licence under the Motor Dealers and Repairers Act 2013. 1. Section 115 of the RLLC Act deals with disputes regarding sales. It states as follows: 115 Disputes relating to sale (1) A home owner, prospective home owner, operator or selling agent may apply to the Tribunal for the resolution of any dispute concerning the sale of the home, the terms of the proposed site agreement or the proposed site fees, in particular— (a) any dispute about compliance with a provision of this Part, and (b) any dispute about whether a sale commission, incidental expense or other fee or charge is payable to the operator or agent in relation to the sale of the home, and (c) any dispute about the amount of a sale commission, incidental expense or other fee or charge payable or paid to the operator or agent in relation to the sale of the home (including a claim that a sale commission is excessive when compared to sale commissions charged by local real estate agents), and (d) any dispute about interference by the operator or another person with the sale of the home, and (e) any dispute about the reasonableness of a decision by the operator not to enter into a site agreement with a purchaser or prospective home owner. (2) The Tribunal may make the following orders— (a) an order that the home owner or prospective home owner pay a sale commission, incidental expense or other fee or charge of a specified amount to the operator or selling agent, (b) an order reducing the amount of sale commission, incidental expense or other fee or charge payable by a home owner or prospective home owner to the operator or selling agent, (c) an order that the operator or selling agent refund any sale commission, incidental expense or other fee or charge paid by the home owner or prospective home owner to the operator or selling agent (or any part of such a commission, expense, fee or charge), (d) an order preventing interference with the sale of the home, (e) an order requiring the operator to take all necessary steps to facilitate the sale of the home to a specified prospective home owner, (f) an order that the operator pay compensation where— (i) there is or has been interference by the operator with the sale, whether by action or inaction, or (ii) the operator refuses to enter into a new site agreement without reasonable grounds, (g) any ancillary order that the Tribunal, in the circumstances, thinks appropriate. (3) Without limiting its powers, the Tribunal may dismiss an application by the home owner for compensation under subsection (2)(f)(ii) if the Tribunal is satisfied that the grounds on which the operator declined to enter into a site agreement with a prospective home owner were reasonable. 1. Under Part 11, Division 3 of the RLLC Act, the Tribunal can make orders for the termination of a site agreement (s 130); and an order for possession of the residential site (s 131). "Residential site" is defined in s 4 as "a site in a community for a home that is used, or intended to be used, as a residence by an individual". Orders made by the Tribunal for possession can be enforced by the issue of a warrant for possession (s 134). 2. Under Part 11 Division 5 of the RLLC Act (ss 137 and 138) the operator may offer to purchase the home from the home owner; and the Tribunal can determine the value of the home. Those provisions state as follows: 137 Offer to buy home Nothing in this Part prevents the owner or operator of a community from offering to buy a home in the community and the home owner agreeing to sell the home to the owner or operator of the community for an agreed price 138 Tribunal may value homes to facilitate sale (1) The purpose of this section is to enable the Tribunal to assist an owner or operator of a community and a home owner to come to an agreement as to the value of the home owner's home where there is a proposed sale of the home from the home owner to the owner or operator of the community. (2) The Tribunal may, on application by the owner or operator of the community or the home owner (or both), make an order determining the value of the home. For that purpose, the Tribunal may obtain a valuation of the home, or seek advice as to the valuation of the home, from one or more qualified valuers. (3) Any costs payable to a qualified valuer are payable in such proportions as are agreed between the parties or (failing agreement) as ordered by the Tribunal. (4) The Tribunal's determination of the value of the home is advisory only and does not bind the owner or operator of the community or the home owner or affect any agreement between them for the sale of the home (unless the agreement provides otherwise). (5) Subject to the regulations, a reference in this section to a qualified valuer is a reference to a person who— (a) has membership of the Australian Valuers Institute (other than associate or student membership), or (b) has membership of the Australian Property Institute (other than student or provisional membership), acquired in connection with his or her occupation as a valuer, or (c) has membership of the Royal Institution of Chartered Surveyors as a chartered valuer, or (d) is of a class prescribed by the regulations. 1. Under Part 12 Division 2 of the RLLC Act, parties may refer their dispute to mediation with the Commissioner (s 146); and the Tribunal may refer matters for mediation (s 147). Sections 151-154 deal with the procedure for mediation. 2. If an application to the Tribunal is made under s 156 to determine a dispute about rights or obligations under the Act; the Tribunal has remedial powers under s 157. It also has the power to made orders to reflect an agreement reached at mediation (s 158). 3. The position of the operator before the Tribunal was that it is not bound to invoke the RLLC Act, and can rely on the provisions of the UG Act to sell the respondent's home to repay site fee arrears and other expenses. Ground 1-Section 5 of the UG Act 1. No argument was advanced that the home is the subject of bailment. Accordingly, s 5(2) of the UG Act is the pertinent statutory provision. 2. Section 5 of the UG Act relevantly states: 5 When goods uncollected for purposes of Act (1) Bailed goods are uncollected for the purposes of this Act if— ... (2) Goods are also uncollected goods if— (a) a park owner reasonably believes the goods have been abandoned or left by the occupant on the site when an occupation agreement is terminated (within the meaning of the Holiday Parks (Long-term Casual Occupation) Act 2002), or (b) an operator reasonably believes the goods have been abandoned or left behind on residential premises when an agreement is terminated or on common property in the community (within the meaning of the Residential (Land Lease) Communities Act 2013), or (c) a landlord reasonably believes the goods have been abandoned or left behind by the tenant or an occupant of the premises after vacant possession of the premises is obtained or the premises are abandoned (within the meaning of the Residential Tenancies Act 2010), or (d) an operator reasonably believes the goods have been abandoned or left behind on residential premises when a residence contract is terminated or on common property within the retirement village (within the meaning of the Retirement Villages Act 1999), or (e) an owners corporation reasonably believes the goods have been abandoned or left behind on common property of a strata scheme (within the meaning of the Strata Schemes Management Act 2015), or (f) the goods are of a kind prescribed by the regulations. 1. Section 3 of the UG Act defines "goods" as: goods means all chattels personal, other than things excluded from this definition by the regulations. 1. Section 3 defines "uncollected goods" as: uncollected goods means goods that are uncollected as referred to in section 5. 1. Regulation 4 of the UG Regulation refers to certain types of goods that are prescribed under s 5(2)(f), but none of those types of goods involve a home under the RLLC Act. 2. Section 6(2) of the UG Act states that the Act is "also available as an alternative to other statutory means of disposal of particular uncollected goods" other than in respect of the legislation identified in s 6(2)(a)-(g), including legislation prescribed by the Uncollected Goods Regulation 2020 (NSW) (UG Regulation). The RLLC Act is not one of the legislative provisions referred to, nor is it referred to in reg. 5 of the UG Regulation. 3. Section 22 of the UG Act refers to "high value uncollected goods". "High value goods" are goods of a value over $20,000. It is clear that the home the subject of this dispute is of a value over $20,000. Under s 22(2) a receiver of high value goods must not dispose of the goods other than by way of an order of the Tribunal. Under s 31A of the UG Act the receiver may apply to the Tribunal for a direction as to how to dispose of the uncollected goods; and under s 31B of the UG Act the Tribunal may make orders (on application by the depositor or person who has an interest in the uncollected goods) relating to the uncollected goods. Was the Home a Good 'Left Behind' Under s 5(2)(b) of the UG Act? 1. The operator submits that the Tribunal committed an error on a question of law by reason of its finding at paragraph [12] of the reasons that the home was not a good "left behind" by the respondent. No argument is put forward the home was abandoned by the respondent. 2. The Macquarie Dictionary defines the phrase "left behind" as follows: Left … –phrase 3. left behind, a. accidentally left as people move on. b. outmoded in one's ideas and practices as a result of not keeping up with progress. 1. The Cambridge Dictionary defines "leave behind" as follows: To leave a place without taking someone or something with you 1. There is a paucity of legal authority referring to what is meant by the phrase "left behind." However, principles of statutory interpretation apply. The words are to be given their plain and ordinary meaning in their particular statutory context (Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69]-[71] per McHugh, Gummow, Kirby and Hayne JJ) 2. It is logical that for goods to be "uncollected" there must be a realistic ability to take or collect the goods. Section 5(2)(b) of the UG Act states that the operator must reasonably believe the goods are abandoned or left behind on residential premises when an agreement is terminated or on common property in the community. If the goods are not reasonably capable of being taken or collected, there can be no reasonable belief they have been "left behind." 3. Further, s 5(2)(b) of the UG Act refers to goods "left behind on residential premises when an agreement is terminated or on common property in the community (within the meaning of the Residential (Land Lease) Communities Act 2013)". The home is not a good "left behind on residential premises" because the home itself is the residential premises. "Common property" is not defined in the RLLC Act, but "common areas" is defined in s 4 of the RLLC Act as "any amenities, building, facilities, open space, road or other area provided for common use". The land on which the home sits is clearly not a "common area;" and there was no evidence referred to by the operator in the appeal to indicate the land on which the home sits is otherwise "common property in the community." 4. In this matter, the home is a substantial dwelling that is affixed to the land. In oral submissions at the appeal hearing, the operator submitted that the home could be "moved" in the sense that it could be deconstructed and moved in sections; or a crane could be used lift up the home and move the home onto a transporter. 5. The documents relied upon by the operator at the Tribunal hearing do not contain any evidence as to how the home would be moved from the site; or be reasonably capable of being moved. 6. Further, there was no evidence that the operator had requested the respondent remove the home or would permit the respondent to do so. The home is affixed to the land of the operator; and from the submissions of the parties was affixed to the land prior to the respondent entering into the site agreement, rather than the respondent himself installing a manufactured home on the site. To simply assert that the home could be theoretically taken or collected by the respondent does not reflect the magnitude of works that would be necessary; nor that the respondent would require permission to enter the operator's land to remove the home now that his site agreement has been terminated. 7. In contemporary correspondence between the parties, the position of the operator has always been that the home should remain, but be sold and monies owed to the operator deducted from the sale price. That was the order that was sought from the Tribunal under the UG Act. The respondent did not bring the home onto the site; nor could he reasonably collect or move the home from the site. Was the Home Goods Within the Meaning of the UG Act? 1. "Goods" as defined by the UG Act must be "chattels personal." 2. The operator referred to the NSW Court of Appeal decision in PricewaterhouseCoopers Legal v Perpetual Trustees Victoria Limited & 3 Ors [2007] NSWCA 271 (PWC Legal) to support its argument that the home was "chattels personal" despite being affixed to land. 3. PWC Legal did not involve the UG Act. Rather, it was a complex commercial dispute involving causes of action that included professional negligence; and misleading and deceptive conduct under the statutory predecessors of s 18 of the Australian Consumer Law 2010 (C'th). Briefly, a developer owned a community title estate and a related company sold manufactured homes to site lessees on the estate, who also purchased the manufactured homes. The developer sought to obtain a loan, using the land and manufactured homes on the land as security. A valuer had given expert advice about the value of the land, based on the assumption that the manufactured homes formed part of the land. A mortgagor had loaned money to the developer on the basis of that valuation. The developer defaulted on the loan and went into liquidation. The owners of the manufactured homes claimed ownership; and the mortgagor sued the valuer and solicitors for negligent advice and misleading and deceptive conduct. 4. The Court of Appeal (Ipp JA with whom Giles JA and McClellan CJ at CL agreed) referred extensively to the Residential Parks Act 1998 (NSW) (RP Act) which is the statutory predecessor of the RLLC Act, and held that a "manufactured home" was a "moveable dwelling" under the RP Act. By reason of s 85A(1) of the RP Act, a "moveable dwelling on a residential site" was not to be regarded as a fixture to land, regardless as to how it was fixed to the land. However, the Court left open the issue as to whether a manufactured home was, or was not, a fixture to the land (paras [77]-[82] and [88]-[90]). 5. PWC Legal is of little assistance on the issue of whether the type of home the subject of this dispute is "chattels personal" within the UG Act. The decision does not refer to the UG Act and the legislative provisions and definitions in the RLLC Act are significantly different to the predecessor RP Act. 6. There is a distinction between real property (land) and personal property (chattels personal). Chattels personal includes tangible movable property. It is a complex question as to whether something attached to land forms part of the land because it is a fixture; or remains chattels personal (Sackville & Neave Australian Property Law 10th edition (2016) pp 65-75). Whether an item placed on land becomes a fixture is a question of fact in the particular circumstances, and involves consideration of matters including the intention of the parties; the degree of attachment to the land; and whether there was intention for the item to remain on the land for a long period or short period (Power Rental Op Co Australia, LLC v Forge Group Power Pty Ltd (in liq) (receivers and managers appointed) [2017] NSWCA 8 at [140]-[156]). 7. It is unnecessary for us to express a concluded view as to whether the type of home the subject of this dispute is, or is not, "chattels personal" within the meaning of the UG Act, as we have determined that it the Tribunal was correct in finding that the operator did not have a reasonable belief the home was goods "left behind on residential premises…or on common property in the community…." 8. However, any party bringing an UG Act application needs to provide evidence to establish that the goods the subject of the dispute are "uncollected goods" within the meaning of the UG Act. Although we have not been provided with a sound recording or transcript of the hearing, the documents provided in the appeal do not indicate the operator put forward any clear or cogent evidence to prove the home was not a fixture to the land, but was "chattels personal." 9. Ground 1 of the appeal is dismissed. Ground 2-The Findings of Paragraph 12 of the Tribunal's Reasons 1. This ground of appeal not only overlaps with Ground 1; but is arguably a question of mixed fact and law to which leave to appeal would be required (in respect of the purported "irrelevant consideration"); and in respect of the weight given to the evidence, a ground that requires leave to appeal. 2. In any event, the appellant has failed to establish any irrelevant consideration that were material to the Tribunal's decision. In the absence of any sound recording or transcript of the hearing, the appellant has failed to establish this ground. Further, our findings in respect of Ground 1 comprehensively deal with the argument of the operator that the home was not goods "left behind". 3. Ground 2 of the appeal is dismissed. Ground 3-Failure to Provide Adequate Reasons 1. Whether adequacy of reasons is an error on a question of law was considered in Wollondilly Shire Council v Styles [2024] NSWCATAP 104 at [29]-[30] and [32] as follows (citations omitted): "Whilst it is true that simply alleging that reasons are inadequate "raises" a question of law, and that may be sufficient where the parties and the Appeal Panel correctly understand what that allegation entails (STAR Training Academy Pty Ltd v Commissioner of Police (No 2) [2022] NSWCATAP 98 at [14] to [22]), it is preferable that the actual and specific question of law that it raises is identified with precision. That position is reinforced where the appellant is legally represented: Theophilas v Chief Commissioner of State Revenue [2016] NSWCATAP 111, at [24]; Thomas and Naaz, above, at [72]. In the absence of leave to appeal, the particular questions of law identified by the appellant are the subject matter of the appeal: Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd, above, at [13] and the cases referred to there. Succinctly identifying the question the alleged inadequacy raises will also better turn the parties' attention to what question the Appeal Panel is actually answering, as an allegation that reasons are inadequate is all too often simply a challenge to the merits of the Tribunal's decision, for which leave to appeal is required. … As to some of the related questions of law, being whether the Tribunal's reasons were "sufficient in law" (as that phrase was used in Alexandria Landfill Pty Ltd v Transport for NSW [2020] NSWCA 165 by Basten JA at [23]) or met the Tribunal's obligation in respect of what the Tribunal was required to address under s 62 of the NCAT Act, the decision of the Tribunal at [37]-[70] clearly articulates the evidence before it and its findings, the law to be applied, and the reasoning process that led to its conclusions. Had those questions been identified as questions of law, no error would be established. It is also not possible to discern, from examining the reasons and the evidence lodged in the appeal, that some identified inadequacy or deficiency in the reasons shows that the Tribunal has constructively failed to exercise its jurisdiction by failing to deal with "a substantial, clearly articulated argument relying upon established facts": Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; (2003) 77 ALJR 1088; [2003] HCA 26 at [24]. The reasons also meet the required level of transparency to facilitate the appellant exercising its qualified right to appeal." 1. It is unnecessary for us to explore whether this ground of appeal is an error on a question of law, or in substance a ground that requires leave, or a mere compliant about the merits of the decision. In our view, the reasons satisfy the "minimum acceptable standard" criteria referred to in New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [66]-[77]. Those legal principles were summarised by the Appeal Panel in Volkswagen Group Australia Pty Ltd v Saad [2022] NSWCATAP 133 at [58]. The reasons, although not elaborate, are sufficient to understand the evidence of the parties and the factual and legal findings of the Tribunal. 2. Ground 3 of the appeal is dismissed. Ground 4-Factual Finding The Parties Had Agreed to a Method of Disposal 1. The reasons of the Tribunal do not find that the parties had agreed as to a method of disposal. Paragraph [13] of the reasons states: "The issue of contention between the parties is how the property is to be sold and what the value of the property is. The application is a misconceived application under the Uncollected Goods Act and the parties may consider whether an application pursuant to the Residential (Land Lease) Communities Act 2013 needs to be made with the Tribunal to resolve the sale of the home." 1. The first sentence is not a finding of fact or law, but simply an accurate reflection of the past negotiations between the parties. There is no error on a question of law in the second sentence, for reasons we have previously elucidated. 2. Ground 4 of the appeal is dismissed. Ground 5-Finding That the UG Act Does Not Apply Where There is an Agreement On a Method of Disposal, but Not the Value of the Goods 1. The reasons of the Tribunal do not disclose such a finding. In any event, the critical finding was that the home was not goods "left behind," as has been previously discussed in detail. 2. Ground 5 of the appeal is dismissed. Ground 6-Denial of Procedural Fairness 1. Procedural fairness principles were recently summarised by the Appeal Panel in Boreland v Brewis [2024] NSWCATAP 140 at [59]-[64]. 2. The operator assert that the Tribunal denied it procedural fairness because allowed the respondent to rely on evidence that had not been filed and served prior to the hearing, and it was not given a reasonable opportunity to obtain evidence in reply. 3. In the absence of the operator providing a sound recording or transcript of the hearing, we do not know what was raised at the hearing; whether the operator objected to the now disputed evidence; whether the operator applied for an adjournment; whether the Tribunal raises with the operator the ability to make an application for an adjournment; or any other matter relevant to an assessment of whether the hearing had been conducted in a procedurally fair manner. 4. What is a reasonable opportunity for a party to present its case is a matter of fact and degree, and it is not intended to protect a party from its own failures or strategic choices (Lieschke v Lieschke [2023] NSWCA 241 at [22]-[25]; [105]; [107]). 5. Further, even if there was verification by way of a sound recording or transcript to support an assertion that evidence was admitted that had not been filed and served in accordance with Tribunal directions prior to the hearing there is nothing to establish that any practical injustice was caused, or the operator was deprived of a realistic possibility of a different outcome. As the finding of the Tribunal that the home was not goods "left behind" under s 5(2) of the UG Act has not been disturbed on appeal, no denial of procedural fairness is established. Ground 7-Reference to the RLLC Act in the Reasons 1. The Tribunals reference in its reasons to the parties having potential rights under the RLLC Act is not an error on a question of law. It was an observation that was accurate, and appropriately made. 2. Ground 7 of the appeal is dismissed. 3. Finally, for the sake of completeness, we refer to the issue of leave to appeal. Had leave to appeal been sought, it would have been refused, as none of the issues raised in the appeal are sufficient to grant leave to appeal. ORDERS 1. 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: 21 August 2024