Court of Appeal Supreme Court New South Wales Medium Neutral Citation: TriCare (Hastings) Limited v Allen [2015] NSWCA 344 Hearing dates: 5 November 2015 Date of orders: 10 November 2015 Decision date: 10 November 2015 Before: Ward JA; Simpson JA; Tobias AJA Decision: 1. Appeal be dismissed as incompetent. 2. Each party to pay its or their own costs. Catchwords: APPEAL –– whether appeal incompetent having regard to s 101(1) of the Supreme Court Act 1970 – appellant did not appeal from judgment or order of primary judge but challenged obiter observations as to construction of s 130A of the Residential Parks Act 1998 (NSW) and sought to clarify or correct order remitting matter to the Tribunal in that respect – appeal dismissed as incompetent Legislation Cited: Civil Procedure Act 2005 (NSW), s 56 Residential Parks Act 1998 (NSW), ss 128, 130A Supreme Court Act 1970 (NSW), s 101(1) Cases Cited: Driclad Pty Limited v Federal Commissioner of Taxation [1968] HCA 91; (1968) 121 CLR 45 Wang & Liu v State of New South Wales [2011] NSWCA 321 Category: Principal judgment Parties: TriCare (Hastings) Limited (Appellant) Sue Allen (First Respondent) Beryl Anderson (Second Respondent) Kevin Byng (Third Respondent) Lorraine Byng (Fourth Respondent) Phillip Tucker (Fifth Respondent) Judy Tucker (Sixth Respondent) Representation: Counsel: J Robson SC with Dr S Berveling (Appellant) B Walker SC with Ms M McMahon (Respondents) Solicitors: Minter Ellison (Appellant) Tenants' Union New South Wales (Respondents) File Number(s): 2015/139377 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2015] NSWSC 416 Date of Decision: 17 April 2015 Before: Beech-Jones J File Number(s): 2014/356589 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This Headnote is not to be read as part of the judgment] In September 2014, the NSW Civil and Administrative Tribunal (the Tribunal) made an order under s 113 of the Residential Parks Act 1998 (NSW) (the Act) terminating residential site agreements relating to relocatable dwellings owned by the respondents. The Tribunal granted TriCare (Hastings) Limited (the appellant) vacant possession of the land on which the dwellings were located and awarded the respondents compensation pursuant to s 128 of the Act. The respondents sought judicial review of the Tribunal's findings in the Common Law Division of the Supreme Court. The primary judge set aside the decision of the Tribunal on the ground of jurisdictional error, s 128 of the Act being inapplicable on the facts of the case, and remitted the matter to the Tribunal to be determined according to law. In the course of his Honour's reasons, observations were made as to the construction of s 130A of the Act. When the matter was remitted to the Tribunal, the respondents' representatives submitted that the primary judge had determined the construction of s 130A. The appellant did not challenge the primary judge's finding of jurisdictional error or decision to remit the matter to the Tribunal but sought to challenge the obiter observations that had been made as to the construction of s 130A of the Act regarding the valuation of the dwellings and for a variation of the remittal order by way of clarification or correction in light of the construction of s 130A of the Act for which it contended. Neither party raised the issue as to the competency of the appeal prior to the commencement of the hearing when it was raised by the Court. The respondents acknowledged in the appeal proceedings that the primary judge's observations that are challenged by the appellant were obiter and are not binding. The Court dismissed the appeal, ordering each party to pay its or their own costs. In so doing, the Court: 1. held that the appeal was misconceived and incompetent because it was brought against reasons and not from a "judgment or order" as required by s 101(1)(a) of the Supreme Court Act 1970 (NSW): [10], [11] Driclad Pty Limited v Federal Commissioner of Taxation [1968] HCA 91; (1968) 121 CLR 45 and Wang & Liu v State of New South Wales [2011] NSWCA 321 referred to 1. expressed the opinion that it was inappropriate, and probably beyond the Court's remit in circumstances where the appeal was incompetent, to make obiter observations in a factual vacuum and emphasised that it expressed no view on the correctness or otherwise of the primary judge's obiter observations as to the construction of s 130A of the Act: [13], [14]. Judgment 1. THE COURT: According to its Notice of Appeal filed on 11 May 2015, the appellant purports to appeal from the decision of Beech-Jones J dated 17 April 2015: "and in particular his Honour's reasoning in paragraphs [35] and [39] and Order 4 …" 1. Order 4 was in the following terms: "The NSW Civil and Administrative Tribunal re-hear accordingly to law the applications of TriCare (Hastings) Pty Ltd seeking orders under s 113 of the Residential Parks Act 1998 against Sue Allen, Phillip Tucker, Judy Tucker, Kevin Byng, Lorraine Byng and Beryl Anderson." 1. Order 4 was an order consequential upon Order 3 made by his Honour which is not the subject of challenge. It provided as follows: "The orders made by the NSW Civil and Administrative Tribunal dated 2 September 2014 insofar as they concern each of Sue Allen, Beryl Anderson, Kevin Byng, Lorraine Byng, Phillip Tucker and Judy Tucker be set aside." 1. Order 3 was made because the primary judge held (at [64]) that the NSW Civil and Administrative Tribunal (the Tribunal), in making the order that it did, had fallen into jurisdictional error which was so fundamental that it resulted in the proceedings having "wholly miscarried". The appellant does not seek to challenge that finding or his Honour's order setting aside the orders made by the Tribunal. Rather, it challenges some obiter remarks of his Honour at [35] and [39] of his reasons. 2. Pursuant to s 128(4) of the Residential Parks Act 1998 (the Act) the Tribunal had fixed the amount of compensation to be paid to each of the respondents so as to entitle the appellant to terminate their residential site agreements relating to six dwellings located on the appellant's holiday park and to obtain vacant possession of those dwellings. However, the primary judge held that the Tribunal had committed jurisdictional error by assessing compensation under s 128(4) in circumstances where it had no application to the facts of the case. 3. Having so determined, the primary judge then stated (at [32]) that he was then led to s 130A of the Act which empowered the Tribunal, by order, to determine the value of a resident's dwelling and, for that purpose, to obtain a valuation of the dwelling or seek advice as to its valuation from one or more registered valuers. At [35] his Honour observed: "Section 130A(2) requires NCAT to make an assessment of the 'value of the resident's dwelling'. Subsection 130A(4) precludes consideration being had to the dwelling's location. However, the valuation can be taken to include the rights attached to the dwelling under the RPA, such as the right of quiet enjoyment, rights of alienation and the protections of defeasibility afforded by Part 12 itself. In the ordinary course, it is to be expected that the value of a dwelling determined under s 130A would be different and probably exceed the proceeds of disposal of the dwelling if it were to be removed from the site and sold." (emphasis added) 1. At [39] his Honour referred to certain valuation evidence that had been placed before the Tribunal and in particular by a Mr Rutlidge on behalf of the respondents. His Honour then noted that the Tribunal had: "recorded that Mr Rutlidge's valuations were 'based on a capacity to occupy a site and the total figure included a right to occupy with the value of the building placed on a site if it were relocated'. This approach appears to be generally consistent with s 130A". (emphasis added) 1. The appellant takes issue with those parts of [35] and [39] of the primary judge's reasons italicised above. It submits that they involve a misconstruction of s 130A. It thus contends that a determination of value by the Tribunal under s 130A of the Act is limited to the physical dwelling only, without regard to its location or any rights that may be attached to it under the Act. It seeks a declaration to that effect. Furthermore, it seeks, in effect, that the following rider or qualification be added to Order 4 made by the primary judge: "including that the valuation of a dwelling determined under s 130A of the Residential Parks Act 1998 is limited to the physical dwelling only absent regard to its current location or to any occupancy rights attached to the dwelling under that Act". 1. It is apparent from the foregoing that the appellant does not seek to challenge the orders made by the primary judge and, in particular, the order that the Tribunal committed jurisdictional error which required that the orders that it made be set aside and the matter remitted to it for determination in accordance with law. On the contrary, it seeks to challenge two obiter statements of the primary judge contained in his reasons relating to the construction of s 130A in circumstances where the Tribunal had not purported to determine the value of the respondents' dwellings pursuant to that provision but had, wrongly as it turned out, assessed compensation pursuant to s 128(4) in circumstances where that provision had no application to the facts of the case. That challenge can only proceed in an appeal from "a judgment or order of the Court in a Division" as required by s 101(1)(a) of the Supreme Court Act 1970 (NSW). 2. It is well established that a "judgment or order" in the context of s 101(1)(a) of the Supreme Court Act refers to an operative judicial act, i.e., the formal judgment or order which when entered is binding on the parties and definitive of legal rights: Driclad Pty Limited v Federal Commissioner of Taxation [1968] HCA 91; (1968) 121 CLR 45 at 64; and see the other authorities referred to by Campbell JA, with whom Handley AJA agreed, in Wang & Liu v State of New South Wales [2011] NSWCA 321 at [23] noting his Honour's observation that while error in a judgment or order might be demonstrated on an appeal by showing error in a judge's reasons for judgment, the appeal is against the judgment or order, not the reasons for judgment. 3. The obiter remarks of his Honour italicised above (at [35] and [39] of his reasons) did not lead to an operative judicial act: they were irrelevant to the findings of his Honour which founded Orders 3 and 4 and did not arise on the judicial review application to be determined by his Honour. The attempt by the appellant to add what in effect is a rider to Order 4 by way of clarification or correction of that order, consequent upon what it contends was an error in the construction of s 130A does not assist it nor does the invocation of s 56 of the Civil Procedure Act 2005 (NSW). This is particularly so as Order 4 is, as already noted, merely consequential upon Order 3 on the making of which there is no complaint. It follows that the appeal is misconceived and incompetent and, therefore, should be dismissed. 4. Although the written submissions of the parties did not refer to the issue of the competency of the appeal, the point was raised by the Court at the commencement of the hearing when it was adopted by the respondents and properly conceded by the appellant. Nevertheless the appellant sought to persuade the Court that it should deal with the issue of construction arising out of the primary judge's obiter remarks at [35] and [39] of his reasons by way of clarification or construction of the orders his Honour made. This course was opposed by the respondents essentially on the basis that it would constitute the giving of judicial advice in circumstances where the future course of the matter in the Tribunal is unknown. 5. It would be inappropriate and probably beyond this Court's remit, in circumstances where the appeal is incompetent, to add obiter upon obiter in a factual vacuum. The true ambit of s 130A may ultimately be determined by the Tribunal on the remitter. Should it be inclined to consider adopting the primary judge's observations at [35], it should be conscious of the fact that these were obiter. Indeed, significant issues as to the correctness of the observations at [35] were raised in the course of argument in this Court. As to his Honour's remarks at [39], these were conceded by the respondents to be unclear to say the least. Little, if anything, can be extracted from them. 6. Finally, in the event that the issue arises in the Tribunal in the future, it should be clearly understood that this Court does not express either agreement or disagreement with his Honour's observations at [35] and [39], which are the subject of the appellant's complaint. Whether they are right or wrong must await determination on another day. 7. The respondents sought an order that the appellant pay their costs of the appeal. As noted, the issue of the competency of the appeal was first raised by the Court at the commencement of the hearing. It was not raised in the respondents' written submissions. Moreover, the respondents accept that in a sense they were the authors of the course that led to the present proceedings, accepting that their legal representative made a submission to the Tribunal, when the matter was remitted by his Honour to it, to the effect that his Honour had determined how s 130A should be applied in the circumstances. The respondents now acknowledge that no such binding determination has yet been made. Further, they accept that reliance cannot be placed on Mr Rutlidge's valuation at least to the extent that it had regard to a matter that the legislation requires to be disregarded, namely the location of the dwelling. In the circumstances each party should pay its or their own costs of the appeal. 8. The following orders should be made: 1. Appeal dismissed as incompetent. 2. Each party to pay its or their own costs of the appeal. ********** 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: 10 November 2015