Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Pugin v Baywatch Pty Limited [2015] NSWCATAP 20 Hearing dates: Appeal determined on the papers Date of orders: 24 February 2015 Decision date: 24 February 2015 Jurisdiction: Appeal Panel Before: J Redfern, Principal Member R Titterton, Principal Member Decision: Application for leave to appeal refused. Appeal dismissed. Catchwords: Appeal – Civil and Administrative Tribunal (NSW) ‒ residential site agreement – orders made for rent arrears ‒ seeking to challenge compliance with orders made in previous proceedings ‒ no error or injustice warranting leave Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Residential Parks Act 1998 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Texts Cited: Not applicable Category: Principal judgment Parties: Lance Pugin (Appellant) Baywatch Pty Ltd t/as Byron Bay Tourist Village (Respondent) Representation: Counsel: Not applicable Solicitors: Not applicable File Number(s): AP 14/48414 Publication restriction: Not applicable Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 14 September 2014 Before: K Holwell, Member File Number(s): RP 14/41629 REASONS FOR DECISION Introduction 1 The appellant, Mr Lance Pugin, rented a site at the Byron Bay Tourist Village pursuant to a residential site agreement with the owner of the village Baywatch Pty Ltd t/as Byron Bay Tourist Village (Baywatch). 2 Mr Pugin seeks to appeal from an order of the Consumer and Commercial Division of the Tribunal (the CCD) of 10 September 2014. Baywatch had sought orders under the Residential Parks Act 1998 (NSW) for the termination of the residential site agreement and for possession of the subject site, together with the payment of rental arrears. The CCD declined to terminate the site agreement, and was satisfied that in the circumstances of the case Mr Pugin should be given the opportunity to pay the rental arrears. 3 Accordingly the CCD made orders for the payment of rental arrears, the payment of ongoing rent, and a further order that if the orders in respect of rent were not complied then at any time before 10 December 2014 Baywatch could request the relisting of the application to determine whether or not the site agreement should be terminated. 4 This is a matter in which Mr Pugin requires the leave of the Appeal Panel for the appeal to proceed. For the reasons given below we consider that leave to appeal should be refused and the appeal otherwise dismissed. Grounds of Appeal 5 Mr Pugin states his grounds of appeal as follows: [1] the court didn't address defects in the termination notice (01.08.14) re amount of rent arrears amount of rent arrears/power. I maintain that bank statements * are more accurate than a manual card system. [2] the court did not address the non-compliance by Baywatch of the 14.08.13 order re sublet of caravan. [3] that the issue of Div 3, 41, 1(b) and 1(2) was not addressed. * payments to Baywatch are clearly marked with the date rent is paid to. 6 In his notice of appeal Mr Pugin says that the orders the Appeal Panel should make are: Baywatch's application for termination should have been suspended or refused under section 114(3)(3) of the [Residential Parks] Act 1998 no. 152 due to their non-compliance of an existing order (14.08.13). That because of Baywatch's non-compliance the site fees arrears be nullified and that no site fees be payable until they comply with the sublet [and] no extra fee order of 14.08.13. 7 The reference to an order of 14 August 2013 is a reference to an application made to the CCD by Mr Pugin in proceedings RP 13/37388. In those proceedings the CCD dismissed Mr Pugin's application for an order that the power access fee be not payable, on the basis that the site agreement provided that the fee was payable. The CCD also ordered that if Mr Pugin wished to sub-let his caravan, Baywatch was to comply with clause 26 of the site agreement. 8 Clause 26 of a standard form residential site agreement (see Schedule 1 to Residential Parks Regulation 2006) provides that: RIGHT TO ASSIGN OR SUB-LET 26. Baywatch agrees: 26.1 that Mr Pugin may, with the prior consent of Baywatch, assign the whole or part of Mr Pugin's interest under this agreement or sub-let Mr Puginial site, and 26.2 that Baywatch may not unreasonably withhold or refuse consent to the assignment or sub-letting, and 26.3 that Baywatch will not impose any charge for giving such a consent, other than for Baywatch's reasonable expenses in giving consent. Note. The Notes at the end of this agreement (Note 10) explain in more detail some of the circumstances when Baywatch may refuse to consent to the assignment or subletting of Mr Puginial site. 9 The background to the appeal appears to be an allegation of Mr Pugin that Baywatch has unreasonably withheld its consent to Mr Pugin sub-letting his caravan, and, thereby failed to comply with order (2) of the orders of the CCD of 14 August 2013. 10 Attached to the notice of appeal are 11 pages of materials which include copies of CCD notices and correspondence; Baywatch's application to the CCD of 20 August 2014 in the matter appealed from; a statutory declaration of Mr Pugin sworn 22 April 2014; a one page submission to the CCD dated 27 August 2014 in relation to Baywatch's application to terminate the site agreement and correspondence from a person interested in subletting the caravan. 11 In addition to those materials, on 12 December 2014 Mr Pugin filed 11 pages of documents, which included three pages of submissions, extracts of the site agreement, a statutory declaration of Scott Davies sworn 15 April 2014, and correspondence from persons interested in subletting the caravan. We note that in those submissions Mr Pugin states he was advised on 4 December 2014 that Baywatch has now approved a tenant for the site. He also states that he has now recommenced paying site fees. We further note that in those submissions Mr Pugin states that the orders he now seeks from the Appeal Panel are: To set aside and nullify the order of 10/09/2009 (Lismore). To issue a specific performance order, that no site fee payable until [Baywatch complies] with the order of 14/08/2013 (Lismore). To suspend the operation of the application for possession of the premises. 12 In response to those submissions and materials Baywatch has filed a notice of reply on 3 November 2014, to which was attached 31 pages of materials. An additional 30 pages of submissions and documents were filed on 19 December 2014. Leave to appeal 13 In the notice of appeal Mr Pugin states that he is seeking leave to appeal. 14 The Civil and Administrative Tribunal Act 2013 (NSW) (the Act) sets out the basis upon which appeals from decisions of the CCD may arise under s.80 of the Act. That section states that an appeal may be made as of right on any question of law (s.80(2)(b)) or with leave of the appeal panel on any other grounds (s.80(2)(b)). 15 The Appeal Panel in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 considered the requirements for establishing an "error of law" giving rise to an appeal as of right and noted at [11] that, in circumstances where appellants are not legally represented, it is apposite to approach the issue by looking at the grounds of appeal generally. 16 There is nothing in the notice of appeal which suggests that Mr Pugin has an arguable question of law. In our view Mr Pugin is correct in indicating that he requires the leave of the Appeal Panel for the appeal to be proceed. 17 Schedule 4, clause 12 of the Act states that an Appeal Panel may grant leave in respect of a decision of the CCD only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because the decision of the Tribunal under appeal was not fair and equitable, the decision of the Tribunal under appeal was against the weight of evidence, or significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with. 18 The principles to be applied by an Appeal Panel were set out in Collins v Urban [2014] NSWCATAP 17 where an Appeal Panel of the Tribunal conducted a review of the relevant cases. The Appeal Panel concluded that ordinarily it is appropriate to grant leave to appeal only in matters that involve issues of principle, questions of public importance or matters of administration or policy which might have general application; an injustice which is reasonably clear so that it would be unjust to allow the finding to stand; a factual error that was unreasonably arrived at and clearly mistaken; or that the Tribunal had gone about its fact finding process in an unorthodox or unfair manner. Consideration 19 Mr Pugin's appeal is misconceived. He has been ordered to pay rental arrears and ongoing rent in accordance with the residential site agreement. He has failed to demonstrate any persuasive basis on which the orders of the CCD should not have been made, and should now be set aside. 20 Mr Pugin relies on three grounds of appeal. The first is that the CCD did not address defects in the termination notice. Mr Pugin states in his notice of appeal dated 23 September 2014 that he is waiting on reasons for the decision made on 10 September 2014. We note that reasons were provided by the CCD on 29 September 2014. The CCD stated at para [11] of those reasons that the notice of termination was valid as to form and manner of service, that it provided the requisite time for Baywatch to vacate the site, and that Mr Pugin was more than 14 days in arrears of rent on the date the notice was given. 21 In those circumstances this ground of appeal is misconceived. 22 The second ground of appeal is that the CCD did not address non-compliance by Baywatch of the orders of 14 August 2013 as to subletting the caravan. There is no substance in this appeal ground. Even if such a breach was established, on which we express no view, and we note that each party has filed pages of materials disputing this point, this would not form the basis on which to set aside orders for the payment of rental arrears and ongoing rent. The correct approach would have been for Mr Pugin to file an application in new proceedings seeking appropriate relief for breach of the order and/or breach of the site agreement. In any event, as Mr Pugin has noted in his submissions of 12 December 2014, a new tenant has now been approved for the site. 23 As to the third ground of appeal, namely that the issue of Div 3, 41, 1(b) and 1(2) of the Residential Parks Act (consent and additional charge) was not addressed by the CCD, this was amplified in Mr Pugin's submissions received by the Registry on 12 December 2014. There Mr Pugin states: The situation regarding the subletting of my dwelling remains unchanged as from the date I vacated my residence in the park on about the 10/04/2010. As outlined by the owner, Mr Croke, verbally in his office . . . unless I pay him half the rent as well as the site fee, which today would be $329.50 p.w. from a nominal rental income of $300, he will not approve a tenant for my premises. This is a breach of section 26.3p.7 of my RSA and division 3, 41, (1)(b) RPA: (a park owner can not impose an additional charge). 24 There is no substance in this ground of appeal. It does not relate to the matters before the CCD in the decision appealed from. We note again that Mr Pugin has recommenced paying site fees, and that Baywatch has now approved a new tenant for the site. 25 Baywatch submits, correctly, that the second and third grounds of appeal relate to other proceedings previously determined, and that Mr Pugin is well out of time to appeal in respect of those proceedings and he should not be allowed to raise them in this appeal. 26 In summary, the Appeal Panel is of the view that Mr Pugin has raised no issue of principle or question of public importance, no matter of administration or policy which might have general application, or demonstrated an injustice, or an error in the CCD's fact finding process warranting a grant of leave to appeal in this matter. 27 For these reasons, we consider that leave to appeal should be refused, and the appeal otherwise dismissed. Decision 28 For these reasons, the Appeal Panel makes the following orders: 1. Leave to appeal is refused. 2. 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 Amendments 26 March 2015 - Paragraphs renumbered. 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: 26 March 2015