Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Gibbs v Snart & Pelican Park (NSW) Pty Ltd [2016] NSWCATAP 55 Hearing dates: 16 November 2015 Date of orders: 23 February 2016 Decision date: 23 February 2016 Before: Mullane ADCJ, Principal Member T Simon, Senior Member Decision: (1) Leave to appeal is refused; (2) The appeal is dismissed; (3) The appellants must pay the costs of the respondents as agreed or as assessed. Catchwords: Appeal-Leave to appeal -weight of evidence, new evidence not available at trial. Legislation Cited: Consumer Claims Act1998; Civil and Administrative Tribunal Act 2013 Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Appellants: Peter Gibbs & Leiane Gibbs Respondents: Rod Snart, Elanora Snart & Pelican Park (NSW) Pty Ltd Representation: Counsel: For Appellants: Ms L Clarke Solicitors: For Appellants: Mr Spirks For Respondents: Mr S Radburn, Somerville Laundry Lomax File Number(s): AP 15/48882 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer Claims Citation: (Unreported) [2015] Date of Decision: 23 July 2015 Before: R Harris File Number(s): RP 15/04886 REASONS FOR DECISION Introduction 1. On 12 April 2006, the appellants entered into a "Residential Site Agreement" with Pelican Park (NSW) Pty Ltd as owner of Pelican Caravan Park at Nambucca Heads and with Rod and Leonora Snart as managers of the Park. The site agreement in respect of site 70 provided for payment of rental fortnightly. The original term of the agreement was four months, and it contained provision for the agreement to continue after that period. 2. After entering into the agreement, the appellants installed a relocatable home on the site and resided there. They later extended the home. 3. In 2014, the appellants decided to sell the relocatable home and obtain a transfer of the lease of the site to the purchaser. Their agent dealt with two purchasers, who for purposes of these reasons will be referred to as "Mr H"(the first prospective purchaser) and "Mr B" (the second prospective purchaser. 4. The relevant provisions of the Residential Site Agreement stated: Right to Assign or Sub-let. 25 the Park Owner agrees: 25.1 - that the resident may, with the prior consent of the park owner, assign the whole or part of the resident's interest under this agreement or sub-let the residential site; and 25.2 – that the park owner may not unnecessarily withhold or refuse consent to the assignment or sub-letting; and 25.3 – that the park owner will not impose any charge for giving such a consent, other than for the park owner's reasonable expenses in giving consent. 1. There are notes at the end of the agreement. Note 11 states: 11. Sale On-site of moveable dwelling: (1) A resident is entitled to sell a moveable dwelling owned by the resident and stored on the residential site while the residential dwelling is in place on the site, unless: a. This agreement provides and has an additional term that on-site sales are prohibited; and b. The residential site is within a Crown reserve. 1. If the residential site is within a Crown reserve, the resident may, if the park owner consents, sell the moveable dwelling owned by the resident while the dwelling is in place on the site. 2. If the resident is entitled to sell a moveable dwelling on-site (or if the resident otherwise has the park owner's consent to sell a moveable dwelling on-site), the resident must inform the park owner of the resident's intention to offer the dwelling for sale on-site before displaying a "for sale" sign on the dwelling. 3. "For sale" signs must comply with any permissible restrictions set on them by this agreement or, if no restrictions are set by this agreement, any restrictions set by the Park Liaison Committee. 4. A park over must not interfere with the sale by a resident of a moveable dwelling while it is installed on the residential site, unless such interference is permitted by an additional term to this agreement" 1. The Residential Site Agreement did not include any additional term as referred to in sub-paragraph 11(1)(a), 11(4) or 11(5). 2. The appellants filed their application in the Tribunal on 28 January 2015. The application alleged that the respondents had interfered in the proposed sale by the appellants of their relocatable home and the proposed transfer of the right to occupy the site. It appeared too from their documentation that the appellants were alleging that the owner, Pelican Park (NSW) Pty Ltd had refused to transfer the lease to 1 or more of the proposed purchasers. 3. The appellants sought compensation totalling $32,390.30. The Evidence before the Member and the Decision 1. The Tribunal member in his reasons referred to the fact that neither of the 2 alleged proposed purchasers provided any statement or other evidence in the proceedings. Mr B had died before the hearing. 2. The member in his reasons held that Mr & Mrs Snart were "impressive witnesses who gave detailed evidence of their dealings with [Mr H and Mr B]" 3. In their evidence, Mr & Mrs Snart testified that neither of the proposed purchasers had ever made any application to have the relevant site agreement assigned to him and there had only been some preliminary discussions with Mrs Snart by Mr H). Neither of the appellants were present at those discussions. 4. In his statutory declaration filed by the appellants in the appeal, Mr H says that Ms Snart gave him an application form for transfer of the site and he took it with him. He said he intended to obtain a character reference which Ms Snart requested to go with the application. He said that on 11 August, Mr Clarke told him "the sale was not approved and the reason was that I had kids". 1. He says he did not proceed further. 2. In her statutory declaration filed in the appeal, the Aunt of Mr H says she was present at the meeting on 8 August with Ms Snart and on 11 August she went with Mr H to see Mr Clarke. Mr H had with him the application form that had been completed and the character reference he had obtained. She says in her declaration that it was at that meeting with Mr Clarke that he told Mr H and herself that "the park owners were not going to give him a lease because of [Mr H's] children". 1. Mr H decided not to proceed. 2. The appellants have relied upon a letter from their estate agent (Mr Clarke) of 8 January 2015 regarding the occasion when Mr H met Ms Snart at the Park and discussed possible purchase of the home and transfer of the site. Mr Clarke says he took Mr H to see the Park, the relocatable home and the site on 8 August and was with Mr H on 11 August to the Park when he met Ms Snart. Mr H and his Aunt in their statutory declarations attached to the Notice of Appeal say that it was 8 August 2014, when they went and met Ms Snart with Mr Clarke and on 11 August they went to see Mr Clarke at his office. 3. Mr Clarke says in the letter, that the same day as the meeting with Ms Snart (8 August) about 10 minutes after they left Mrs Snart, he received a voicemail message from Mr Snart saying that "under no circumstances would they agree to issuing [Mr H] a lease due to his intentions of having his children stay with him." 1. Mr H in his statutory declaration says that he was not informed of that alleged decision until 3 days later (11 August). Presumably that occurred when Mr H and his Aunt went to see Mr Clarke. 2. Mr Clarke did not give evidence by affidavit or by statutory declaration. He was not a witness in the proceedings and so was not cross examined. 3. Mr Clarke's letter was written 5 months after the occasions. The letter did not disclose the price previously negotiated with Mr H. It says the meeting with Ms Snart was on 11 August and not 8 August. It does not make any reference to the visit to his office by Mr H and his aunt on 11 August. It makes no reference to Mr H having brought the completed application and a character reference. It does not allege that he notified Mr H before 11 August of the alleged rejection in the voicemail on the day of the meeting with Ms Snart (8 August). It is surprising that he did not notify him earlier. It gives a different version of the conversation with Ms Snart to that by Mr H and his Aunt in their statutory declarations in that his version purports that Ms Snart's conversation was more discouraging of Mr H's proposal. For example, it makes no reference to Mr H being given the application form, taking it with him and telling Ms Snart he would take the completed documents to the agent, Mr Clarke. It does not refer to the conversation about supplying a character reference. It refers to Ms Snart making disclosure to Mr H of the fact that the Park often floods. Also, he alleged: "Eleanor advised they may not agree to issue a lease with [Mr H] if his children were to stay with him even if it was for only a couple of nights a week." 1. Neither Mr H nor his Aunt alleged any such statement was made. 2. The second proposed purchaser, (referred to in these reasons as "Mr B") had been a resident of the Park for some time. He had discussions with the Snarts about possible purchase of the site. The evidence of the Snarts is that if Mr B had applied for the site to be transferred to him, his application would have been approved. They also testified that at no time did Mr H or Mr B or the appellants submit an application or make a request to the respondents for assignment of the site to either of the proposed purchasers. 3. There was no evidence by Mr B in the proceedings and no evidence as to any statement by him as to why he didn't proceed or what he was told by the respondents before his decision. There were statements by the appellants in submissions attached to the Application of 28 January 2015 about what transpired between the respondents and Mr B in their dealings. There is no evidence that either of them were present during any such dealings. They identify no source for their statements. It appears those statements are mere speculation. 4. The member held that there was no evidence of any unreasonable refusal to consent to an assignment to either of the proposed purchasers. The member expressed concern that almost all of the appellant's case was hearsay evidence, which he considered to be of "little weight". 5. The member held that there had been no interference with the proposed sales by any of the respondents and there had been no refusal to consent to an assignment. 6. The application was dismissed. The decision is dated 23 July 2015. The appellants filed their appeal on 24 August 2015. There was no issue about whether the appeal was out of time. 7. Issues around the proposed purchasers 8. The agent originally advertised the residence and a boat for sale for $89,000. The appellant's, through the agent, and Mr H negotiated an agreed price of $84,000. Mr H subsequently did not proceed. Mr B dealt with to Mrs Gibbs and negotiated a price of $62,500. But Mr B did not proceed with the purchase. Later a sale proceeded to another prospective purchaser at a price of $63,000. 9. The issue in the proceedings was whether the sale to Mr H for $84,000 did not proceed because of interference by the park owner with the proposed sale by the appellants. 10. The "cover letter" of the appellants of 23 January 2015 is attached to the application. The document is neither an affidavit nor a statutory declaration. In addition, it is not signed by either of them. It refers to negotiations with prospective purchasers, the statement is not clear whether the evidence is direct observation or hearsay as to what someone told him or her or both of them. Because the document is by both of them, it does not indicate that either of them had any direct knowledge of the acts alleged in the document. The nature of the contents is submission rather than evidence. There is a similar document signed by both the appellants and attached to the Application. It is undated. The appellants did not make any affidavit or statutory declaration in the proceedings. 11. It appears that the appellants had lived for 5 years in the relocatable home, and for the last 4 years prior to the listing of the property for sale, they had rented the property to a tenant. 12. There was no evidence as to why the appellants did not rely on any evidence from Mr Clarke. Neither of the appellants met Mr H. Mr H went with Mr Clarke to the Park, and Mr H had a conversation with Mrs Snart about the Park with a view to purchasing the appellant's relocatable home and obtaining the site. 13. The only direct evidence before the Tribunal was to the contents of that conversation is the evidence of Mrs Snart. The member accepted that evidence. There was no evidence about the conversation from Mr H or Mr Clarke or Mr H's Aunt. 14. The appellants had prepared their application in January 2015. The usual directions would have been made requiring for fling and service of documents for hearing. The hearing proceeded on 20 July 2015, 6 months later. That appears to have been ample time for the appellants to have prepared their case. 15. At the hearing before the member the appellants did not rely on any evidence by Mr H or the agent, Mr Clarke. The evidence was that at no time did either Mr H or Mr B or the appellants make an application for the Park Owner to agree to the transfer of the relocatable home and site to the purchaser. 16. The appellants did not at the hearing seek any adjournment in order to obtain further evidence in support of their application. There is no direct evidence by Mr H or by Mr B as to the reason(s) he did not proceed with the proposed purchase. Nor was there any explanation offered as to why there was no evidence by either of them or by the agent, Mr Clarke. Grounds of Appeal 1. The Grounds of Appeal are as follows: 1. The Tribunal failed to give sufficient weight to the letter of Rodney Clarke dated 8 January 2015 and displayed bias in favour of the respondents. 2. In the alternative: 1. Since the hearing significant new evidence has arisen which was not reasonably available at the time of the original hearing. The appellants have been contracted by the original purchaser (Mr Hammond) who prepared a statement and who is prepared to give oral evidence on appeal. The purchaser's Aunty (Ms Flanders), who was also present throughout the negotiations, has also prepared a statement and is also prepared to give oral evidence on appeal. 2. The evidence provided by both Mr Hammond and Ms Flanders addresses the issue of unreasonable interference by the respondents in the appellant's sale of their relocatable dwelling to the purchaser; and 3. Whilst it is a matter for the Tribunal to decide whether their evidence is sufficient to grant the appellant's application, their evidence is material and needs to be tested. If the Tribunal refuses to hear their evidence the appellants will suffer a substantial miscarriage of justice. Right of Appeal 1. Under the Civil and Administrative Tribunal Act 2013 ("the Act") an "internal appeal" is an appeal from a decision of a single member to an Appeal Panel. Section 80 of the Act deals with "making of internal appeals". 2. Sub-Section 80(2) provides that an internal appeal may be made against a decision other than an interlocutory decision as of right on any question of law, and otherwise with the leave of the Appeal Panel. 3. Clause 12 of Part 6 of Schedule 4 of the Act is headed "Limitation on Internal Appeals against Division decisions". 4. Sub-Clause 12(1) provides that an Appeal Panel can grant leave under Section 80 of the Act for an internal appeal against a Division decision, only if the Appeal Panel is satisfied that the appellant may have suffered a substantial miscarriage of justice because: 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. The appeal grounds are not on questions of law and therefore under section 80(2) of the Act the appeal requires leave. Ground 1 – Giving Insufficient Weight to Mr Clarke's letter dated 7 January 2015 and thereby displaying bias in favour of the respondents 1. For purpose of this ground the recent statutory declarations of Mr H and his Aunt should be disregarded, as they were not available at the hearing before the Member. 2. This ground has no substance. Mr Clarke had not given any evidence by affidavit or by statutory declaration or even by unsworn statement. The letter is in the form of a summary rather than evidence as to what in fact was said. He also gives hearsay evidence of Mr H's state of mind after the conversation with Mrs Snart. In addition, quite apart from the inconsistencies with the recent statutory declarations by Mr H and his Aunt, there were internal inconsistencies and other problems with the letter. 3. The letter did not give direct speech, but summarised. Mr Clarke was not present and gave no statement or other documentary evidence. He was an obvious person who, it appeared, the Appellants should have relied upon as a witness, but they didn't and there was no evidence that he wasn't available or why he wasn't a witness. 4. The problems with his evidence were serious. If the rules of evidence had applied, the entire letter, or much of it, would have been in admissible. It is noted that pursuant to s 38 of the Civil and Administrative Tribunal Act 2013 (NSW) it is relevantly stated that (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. (3) Despite subsection (2): (a) the Tribunal must observe the rules of evidence in: (i) proceedings in exercise of its enforcement jurisdiction, and (ii) proceedings for the imposition by the Tribunal of a civil penalty in exercise of its general jurisdiction, and (b) section 128 (Privilege in respect of self-incrimination in other proceedings) 1. It was a matter of discretion for the member as to what weight he gave the letter. 2. There were aspects of the Appellant's case before the Member on which Mr Clarke could have given evidence in the appellants' case before the member, but he did not do so and there was no explanation as to why he didn't and no evidence that he couldn't have done so. 3. In submissions, Ms Clarke for the appellants, said that the Member "had a duty" to inform the party that he was not going to give weight to Mr Clarke's letter and to offer the party an adjournment. 4. This misconstrues the concept of procedural fairness. That concept is not just an issue about whether it is unfair to a party to not give such a warning and not offer an adjournment to rectify an inadequacy in the party's case. What is fair has to take into account the interests of the other party or parties to the proceedings. 5. In this situation, the inadequacies in the evidence offered by the appellants before the Member were in no way attributable to the other parties. 6. The appellants had more than 6 months to prepare for the hearing and were responsible for those inadequacies in the preparation of their case. It would not have been fair to the other parties to the proceedings for the member, at the end of the appellant's case, to have offered them an adjournment to remedy an inadequacy in their case of which they were the sole authors. The Respondents would justifiably perceive the Tribunal as assisting the other side and demonstrating bias. 7. The conduct of the Member in not intervening by warning the Appellants during the hearing that the letter might not be given any weight is likely to be perceived as maintaining impartiality. 8. It was a matter of discretion of the Member as to what weight he gave to the letter. It was well open to him to decide that in all the circumstances he should not rely on the letter, he should give it no weight. 9. In the course of identifying the documentary evidence the Member reminded the parties that although all the documents relied upon were being admitted to evidence, it was subject to relevance and the weight given to them. 10. Given the evidence, the Member's decision on that point was well within his discretion. It did not demonstrate any bias. Ground 2 – New Evidence that was not reasonably available at the time of the original hearing 1. Attached to the notice of appeal are statutory declarations are by Mr H and by his Aunt. The declaration by Mr H is dated 12 August 2015 and the declaration by his Aunt is dated 9 August 2015. Both declarations were made after the hearing and after the decision of the member of 23 July 2015. 2. Attached to the notice of appeal are submissions which include submissions regarding "evidence now available that was not reasonably available at the time of the hearing". A hearsay submission under this heading is that the agent, Mr Clarke, was aware that Mr H resided at the small town of Bowraville and had his mobile phone number. It says that Mr Clarke, the agent, attempted to contact Mr H by phoning his mobile number, but Mr H did not answer the calls. 3. It was not submitted that any text message was sent to Mr H by the agent or by either of the appellants. A submission for the appellants says that Bowraville is only 20km from the home of the appellants and the appellants before the hearing attended at Bowraville in person on only one occasion, and "asked around the streets" of persons as to whether they knew the whereabouts of Mr H. They did not locate him. 4. After the hearing and the decision, Mrs Gibbs attended at Bowraville State School and the local IGA supermarket. At the supermarket she located a man who knew Mr H and one of his aunts. Mrs Gibbs left a message for Michelle at the supermarket, and the following day Michelle Flanders contacted Mrs Gibbs. Michelle then contacted Mr H. He and his aunt then provided statutory declarations. 5. The evidence relied upon by the Appellant does not establish that the evidence of Mr H and his aunt was not reasonably available before the hearing. It was not offered at the hearing because the Appellants made infrequent and inadequate attempts to obtain it. 6. The statutory declarations of Mr H and his aunt do not disclose any aspect of the conversation between Mrs Snart and Mr H that could be regarded as interference with the proposed sale to Mr H. Telling Mr H about past flooding of the park is a proper disclosure to a prospective occupant. Asking for a character reference, asking about how he will be able to pay the rent and asking about what children he will have staying in the Park are reasonable enquiries of a prospective occupant of a site in the Park. 7. In addition, Mr H's evidence contradicts the allegation that he changed his mind about the proposed purchase because of interference by the Respondents. His evidence is that he withdrew because of what Mr Clarke told him Mr Snart had told him, and there is no reliable evidence of the message from Mr Snart, just the allegation in Mr Clarke's letter. 8. The material in the declarations by Mr H and his Aunt would not have assisted the case of Mr & Mrs Gibbs before the Member. They could not assist in proving any refusal to consent to the transfer of the lease of the site, nor do they provide evidence of any interference with the sale. 9. The new evidence was not shown to have not been reasonably available before the hearing. Also it was not evidence that would support the assertion that there was interference by any of the respondents in any sale. The new evidence was not shown to be "significant" in the appellant's case before the Member. Conclusions 1. The Grounds of appeal have no merit. 2. The Appeal Panel has concluded that the appellants have not established that the decision of the Tribunal under appeal was not fair and equitable, or the decision was against the weight of the evidence or that significant new evidence had arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 3. Accordingly, the case for an application for leave to appeal under Clause 12(1) has not been established. Leave to appeal should be refused and the appeal should be dismissed. 4. It was clearly open to the Member to make a finding that the applicant's case was almost entirely hearsay and that the evidence was of little weight. In particular, there was no evidence by Mr H or Mr B as to his reasons for not proceeding with the purchase. 5. Similarly, there was no evidence of any interference by the respondent's in the respect of either proposed sale. 6. In those circumstances, it appears that this objection has no merit. Costs 1. At the hearing of the appeal the respondents sought an order for their costs to be paid by the appellants and there were submissions on the cost issue. 2. The general rule is that in proceedings in the Tribunal each party pays the parties' own costs (s 60(1)). 3. However, sub-Section 60(2) gives the Tribunal power to award costs if it is satisfied that there are special circumstances warranting an award of costs. 4. Sub-Section 60(3) of the Act requires: 1. In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: 1. Whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings; 2. Whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings; 3. The relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law; 4. The nature and complexity of the proceedings; 5. Whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance; 6. Whether a party has refused or failed to comply with the duty imposed by Section 36(3); 7. Any other matter that the Tribunal considers relevant. 1. The hearing involved submissions in the appeal that took more than 2 ½ hours. The appeal grounds did not have merit, nor did the application for leave to appeal. 2. The appeal raised reasonably complex issues. The written outline of the respondent's submissions was almost 12 pages. It was an appeal where leave was required. The claim of Mr & Mrs Gibbs exceeded $30,000. Both parties had solicitors for the appeal and the appellant had counsel. On the hearing of the appeal, the appellants and Mr Clarke were in contact with the hearing room by a telephone link to the office of the solicitor for the appellants. 3. For these reasons, there are special circumstances that justify an order for the appellants to pay the respondent's costs. Order 1. The orders of the Tribunal therefore are: 1. Leave to appeal is refused; 2. The appeal is dismissed; 3. The appellants must pay the costs of the respondents as agreed or as assessed. ********** 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: 23 February 2016