Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Liberant v Brisbane Water (NSW) Legacy Club [2017] NSWCATAP 132 Hearing dates: 8 March 2017 Date of orders: 19 June 2017 Decision date: 19 June 2017 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President D Goldstein, Senior Member Decision: (1) The time for lodgement of the appeal is extended to 9 January 2017; (2) Appeal upheld; (3) The orders made in proceedings RV 16/39663 are set aside; and (4) Application RV 16/39663 is dismissed. Catchwords: Extension of time – section 41 of the Civil and Administrative Tribunal Act 2013 – regulations 38 and 55 of the Retirement Villages Regulations 2009 – requirements for giving termination notices Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Interpretation Act 1987 Retirement Villages Act 1999 Retirement Villages Regulations 2009 Cases Cited: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Category: Principal judgment Parties: Noemi Liberant aka Noemi Kanengiser (Appellant) Brisbane Water (NSW) Legacy Club (Respondent) Representation: Counsel: Not applicable Solicitors: Brennan Tipple Partners (Respondent) File Number(s): AP 17/00943 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 8 December 2016 Before: D Charles, Senior Member File Number(s): RV 16/39663 reasons for decision Background 1. This is an appeal from a decision made in the Consumer and Commercial Division of the Tribunal on 8 December 2016 (the Decision). The appellant was a resident of a retirement village and a party to a contract described as a "Residents and Service Contract" dated 14 September 2011 (the Contract). The respondent to the appeal is the other party to the Contract and the operator of the retirement village. The Contract is regulated by the provisions of the Retirement Villages Act 1999 (NSW) (the RV Act). 2. We will refer to the appellant as the resident and to the respondent as the operator. 3. The order made by the Tribunal in the Decision was to terminate the Contract and to require the resident to vacate the residential premises which were the subject of the Contract by 15 December 2016. 4. The Tribunal's findings recorded in the Decision may be described in these terms: 1. The operator was the applicant and the resident was the respondent in the proceedings before the Tribunal. The parties had entered into the Contract; 2. The operator sought orders under s 134 of the RV Act to terminate the Contact based upon breaches of clauses 5.01(e) and 6.01 of the Contract which dealt with access to the resident's residence for a fire safety check and concerned alleged unauthorised changes to security and locking devices; 3. The Tribunal found that the resident had breached the Contract and the Village Rules and had not provided access to the resident's residence as required under clause 5.01(e); 4. The Tribunal found that in breach of clause 6.01 of the Contract and the Village Rules relating to front and back door locks, the resident had altered the locks on the back screen door; 5. The operator had afforded reasonable time to the resident to comply with the Contract and the Village Rules; 6. The operator had served upon the resident a notice dated 3 August 2016 of its intention to seek orders from the Tribunal under the RV Act for termination of the Contract and possession of the residence (being unit 44); 7. The residence (unit 44) has not been occupied by the resident since in or about June 2016; 8. The village in which the residence was located was established in the 1960's primarily for legacy war widows to live safely and securely in low cost housing. Currently there is a waiting list of legacy widows who are aged and seek the community support which the village provides and the operator would be able to house another eligible widow if it had vacant possession of unit 44; 9. If unit 44 remains vacant the health and welfare of those in adjoining units is likely to be adversely affected through the continued dilapidation of that unit; 10. The Tribunal is satisfied in the circumstances of the case that the breach of the Contract and the Village Rules is such as to justify the termination of the Contract (see s 134(3)(a) of the RV Act); 1. For convenience we set out the provisions of clauses 5.01 and 6.01 as follows: 5. Operator's Access to Premises 5.01 The Operator, or a person authorised by the Operator, may enter the Premises in the following circumstances:- (a) if the Resident consents to the entry; or (b) in an emergency; or (c) if the Operator has reasonable cause for concern about the health or safety of a person that the Operator believes is on the Premises; or (d) in order to carry out urgent repairs; or (e) in order to carry out general maintenance, but only if 7 days' notice has been given to the Resident; or (f) in order to carry out a general inspection of the Premises but only if 7 days' notice has been given to the Resident and a general inspection of the Premises has not been carried out more than once in the immediately preceding 12 months; or (g) in accordance with an order of the Tribunal. 6.01 The Resident and the Operator must comply with the village rules. 1. The relevant village rule (which was set out in the Decision) says: DOOR LOCKS / KEY SYSTEM All screen and front and back door locks are on a master lock system. Under no circumstance may residents have these locks changed. Your front door key will access the Doug Fagan Lounge, laundries and the gate at York Street. Please ensure you lock any doors/gates after use. Notice of Appeal 1. The Notice of Appeal was filed with the Tribunal on 9 January 2017. It states that the Decision was received by the resident on 14 December 2016. 2. The resident's right to file an appeal against the Decision is regulated by the provisions of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) and the Civil and Administrative Tribunal Rules 2014 (the Rules). 3. Section 80 of the NCAT Act provides that an appeal against an internally appealable decision may be made as of right on any question of law or with leave of the Appeal Panel on any other ground. 4. The Decision is an internally appealable decision. Clause 12 of Sch 4 of the NCAT Act makes provision with respect to the other grounds (for which leave is required). Clause 12 provides: 12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (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). Note. Under section 80 of this Act, a party to proceedings in which a Division decision that is an internally appealable decision is made may appeal against the decision on a question of law as of right. The leave of the Appeal Panel is required for an internal appeal on any other grounds. (2) Despite section 80 (2) (b) of this Act, an internal appeal against a Division decision may only be made on a question of law (as of right) and not on any other grounds (even with leave) if: (a) the appellant is a corporation and the appeal relates to a dispute in respect of which the Tribunal at first instance had jurisdiction because of the operation of Schedule 3 to the Credit (Commonwealth Powers) Act 2010, or (b) the appeal is an appeal against an order of the Tribunal for the termination of a tenancy under the Residential Tenancies Act 2010 and a warrant of possession has been executed in relation to that order. 1. In addition, in the circumstances of this case, r 25 of the Rules is relevant. Rule 25(4) provides (in summary) that unless the Tribunal grants an extension of time under s 41 of the NCAT Act, an internal appeal must be lodged, in the case of an internal appeal against a decision made in residential proceedings, within 14 days from the day in which the appellant was notified of the decision or given reasons for the decision (whichever is the later). 2. Rule 3 of the Rules contains a number of definitions. The definition of residential proceedings includes proceedings arising under the RV Act. 3. Accordingly, in this case, the appeal, in the absence of an extension of time, was required to have been filed within 14 days from 14 December 2016. 4. Rule 6 deals with the reckoning of time and in the circumstances of this matter requires the period of 14 days to be counted from and including 15 December 2016 and without regard to the public holidays at the end of December. This means that the last day for the filing of the Notice of Appeal was 28 December 2016. On that day the Registry of the Tribunal was open and accordingly r 6(4) does not apply. 5. The resident applied to the Tribunal for an order that time be extended until 9 January 2017 and the operator opposed the application for extension of time. 6. The considerations which the Tribunal must consider when exercising its discretion to extend time under s 41 of the NCAT Act have been set out in earlier Appeal Panel decisions. Those principles may be summarised in these terms and are taken from the Appeal Panel decision in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22: 1. The discretion to extend time must be exercised judicially and have regard to the guiding principle set out in s 63 of the NCAT Act, which is that the Tribunal is to "facilitate the just, quick and cheap resolution of the real issues in the proceedings"; 2. The discretion to extend time can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice; 3. Time limits should generally be strictly enforced, subject to the interests of justice; and 4. In considering whether to extend time, the Appeal Panel should have regard to the length of the delay, the reason for the delay and the appellant's prospects of success (that is usually whether the applicant for the time extension has a fairly arguable case). In addition a further consideration is the extent of any prejudice suffered by the respondent. 1. We will deal with the question of whether we should exercise our discretion to extend time subsequently in these reasons. Grounds of Appeal as set out in Notice of Appeal Ground 1 1. The resident submits that the Tribunal erred in finding, in the absence of evidence, that the resident had breached her agreement by failing to give access to the property for a fire alarm inspection. The event that gave rise to the application was a planned fire alarm inspection on 3 and 4 May 2016. The operator attempted to access the property on 3 May but could not do so. There was evidence before the Tribunal that the resident provided access on 4 May 2016. There was no evidence that the resident had refused access or failed to co-operate with the request for access. Ground 2 1. The resident submits that the Tribunal erred in finding that the resident had breached clause 5.01(e) of the Contract in that the Tribunal failed to consider whether the resident had acted unreasonably. The resident submitted that clause 5.01(e) confers permission on the operator to enter the property in certain circumstances. There is an implied duty on the resident to co-operate in order to give effect to the term. The obligation to co-operate is limited to what can be reasonably expected in the circumstances. The evidence before the Tribunal was that access was obtained on one of the two days of the planned inspection. The reasons disclose no consideration of whether the resident had unreasonably refused to co-operate with the request for access. Such consideration could have caused the Tribunal to find that there was no breach. Ground 3 1. The Decision contains insufficient reasons for the finding that there was a breach of the Contract such as to justify termination. Two breaches were found namely: 1. Failure to allow access to the property for a fire inspection; and 2. Changing the locks to two doors of the property. 1. The Tribunal must consider whether the breach, in all the circumstances, justified termination. 2. In the Decision the Tribunal outlined the factors it considered relevant in determining the case. Those factors do not include consideration of: 1. The type of breach; 2. The circumstances of the breach; 3. The seriousness of the breach; 4. Whether the breach is remediable/had been remedied (in this case both had been remedied at the time of hearing); or 5. Any impact on neighbours or other relevant person from the breach. 1. While considerations about the Contract in general may be relevant to the discretion, they do not displace, the resident submits, the need to consider the factors set out above about the nature and circumstances of the breach. The reasons for the Decision are insufficient to allow the parties to understand the result that the breach, in all the circumstances, justified termination. Ground 4 1. The resident submitted that the Tribunal erred in the exercise of its discretion to terminate the Contract. The submission is that the exercise of discretion may miscarry where a decision maker acts upon a wrong principle, allows extraneous or irrelevant matters to guide or affect them, mistakes the facts or does not take into account a material consideration. Here, the Tribunal took into account the resident's absence from the property as a factor that weighed towards exercising the discretion to terminate. The resident provided evidence that her absence was because of continued repairs problems with mould in the property and that it was unsafe for her to reside there at that time. The Tribunal took into account the likely adverse effects to the health and welfare of neighbouring residents through dilapidation of the unit as a factor that weighed towards exercising the discretion to terminate. There was no evidence before the Tribunal that the absence of the appellant had caused dilapidation or that the health and wellbeing of neighbours had been or would be affected by the continuation of the Contract. The Tribunal took into account the waiting list of other applicants for housing with the operator but there was no evidence of a list, or the number of other applicants waiting or the length of time an applicant would wait, nor vacant units currently available. The findings on these points were central to the decision to terminate and caused the exercise of discretion to miscarry. Ground 5 1. The Tribunal failed to afford procedural fairness to the resident in that the Tribunal declined to adjourn the matter to give the resident an opportunity to present her case. The Tribunal is bound to afford procedural fairness and natural justice to parties. The operator had made a request for an adjournment of the hearing to be held on 1 December 2016. The hearing was scheduled for 8 December 2016 at a different registry. The resident wrote to the registry to inform them that because of her disability she could not attend the hearing in person. The resident made a request for an adjournment. No written reasons for a decision were given. The resident made an effort to attend the hearing, requesting an adjournment in person but the request was denied. She was unable to obtain the file and was not able to put forward her case fully to the Member. Extension of Time 1. In support of her application for an order that time to file the appeal be extended to 9 January 2017, the resident submitted that the length of the delay beyond 28 December 2016 was nine days which included a weekend and a public holiday. The resident submitted that the reason for delay was that the resident had been advised by the Tribunal registry that the time limit for the lodgement of an appeal was 28 days. However, on 4 January 2017 the resident obtained advice that the time limit was in fact 14 days and she lodged the Notice of Appeal two days later. The resident submits that she has an arguable case and that any prejudice suffered by the operator is far outweighed by the prejudice to the resident if an extension is not granted. Reply to Appeal 1. The operator's Reply to Appeal may be summarised in these terms: 1. The operator supports the orders made and submits that the appeal should be dismissed; 2. The operator states that at the hearing on 8 December 2016, the Member offered to both parties the option to allow for a period of six months for the resident to abide by all Village Rules during that time and the matter would then be reviewed. The operator agreed to this proposal but the resident did not agree with the proposal; 3. The operator states that it first became aware of the change of locks on 3 May 2016 and wrote on that day to the resident. The letter contained references to the Village Rules which the operator alleged the resident had breached; 4. The breach of the Contract and village rules was clear and the operator had afforded reasonable time to the resident to comply with both the Contract and the Village Rules; 5. The operator submits that the correspondence reveals that the resident was afforded approximately three months to meet the requirement of the Contract and Village Rules but failed to do so. The resident either had the electricity supply disconnected or, in any event, it was disconnected in July 2016 and had effectively vacated the premises in June 2016 by removing her property with the result that the unit was left vacant but not cleaned. 1. Attached to the Reply is a letter from the operator to the resident dated 3 May 2016. That letter states that the resident has breached the "legacy village rules" and then quotes clause 5.01(e) (the text of which has been set out above). The letter also states that notice was given to all residents on 20 April 2016 of the intention to conduct mandatory fire equipment testing. The letter refers to village rule 6.01. The letter goes on to summarise the requirement that all fire safety equipment fitted within units be regularly tested and that the resident's unit had not been tested during 2015. Finally the letter indicated that the locks must be "returned to the master key system. Arrangments will be made for the locksmith to attend and complete this task, and the costs charged to you". 2. The Reply includes a statement to the effect that the operator arranged in early January 2017 for the total refurbishment of unit 44. Written Submissions 1. A call over was undertaken in January 2017 at which time directions were made for the parties to exchange submissions. In addition the Tribunal noted the undertaking of the operator not to relet the premises the subject of the dispute without an order from the Tribunal permitting such action. Written submissions have been received from the parties and in the following paragraphs we summarise the effect of those submissions. Resident's Submissions 1. The resident's submissions contained further grounds which were not included in the Notice of Appeal. 2. The first further ground raised by the resident in her submissions is to the following effect: 1. The application brought by the operator was brought pursuant to the provisions of s 134 of the RV Act. Section 134 states: 134 Termination on grounds of breach of village contract or rules (1) The operator of a retirement village may apply to the Tribunal for an order terminating the residence contract of a resident of the village who breaches any village contract between the resident and the operator or breaches a village rule. (2) A resident of a retirement village may apply to the Tribunal for an order terminating his or her residence contract if the operator breaches any village contract between the resident and the operator or breaches a village rule. (3) The Tribunal may, on application made under this section, make an order terminating the residence contract, but only if it is satisfied that: (a) the breach, in the circumstances of the case, is such as to justify termination of the contract, or (b) persistent breaches by the resident or operator concerned are, in the circumstances of the case, such as to justify termination of the contract. (4) If the Tribunal makes an order terminating a residence contract under this section, the Tribunal must fix in the order a date by which the resident must vacate the residential premises concerned. (5) If the Tribunal forms the opinion, in the course of proceedings under this section, that a village rule is unjust, unconscionable, harsh or oppressive, it may make an order: (a) setting aside the rule, or (b) modifying the operation of the rule, either in its application to the operator or to a resident (or to some or all of the residents) of the retirement village concerned. 1. Before an application may be brought by an operator to the Tribunal it is necessary for the operator to comply with s 131. It states: 131 Notice of intention to seek termination (1) If the operator or a resident of a retirement village intends to apply to the Tribunal for an order terminating a residence contract, the intending applicant must give the other party to the contract written notice of that intention, except as otherwise provided by this Act. (2) The notice is to be given in the form, and within the time, prescribed by the regulations. (3) The Tribunal is not to make an order terminating a residence contract unless it is satisfied that the notice (if required) has been duly given. 1. The provisions of the Retirement Villages Regulations 2009 (RV Regulation) regulate the time in which applications to the Tribunal may be made. Regulation 38 provides that an application to the Tribunal under a section of the RV Act specified in column one of Sch 5 may only be made only within the time specified in column two of that schedule in relation to the section. That regulation contains the note that time may be extended under the provisions of the NCAT Act; 2. Schedule 5 of the RV Regulation relevantly states that an application under s 134(1) must be brought "no later than 14 days after service of termination notice"; 3. The resident submits that the Tribunal failed to recognise that an application "must have been lodged up to 30 days after alleged breach became known to the applicant but not later than 14 days after the service of the notice". It is submitted that the Tribunal should have dismissed the application as being out of time because it should have been filed by 17 August 2016 but was not filed until 2 September 2016; 4. In addition, the resident submits that the Tribunal should not have made an order terminating the Contract unless it was satisfied that notice had been duly given (pursuant to s 131). The only notice, the resident submits, was on 25 July 2016 but that notice did not state that the operator intended to apply to the Tribunal for termination. The only notice given thereafter was the notice of termination in early August 2016; 1. The resident made further written submissions to the Tribunal. Those submissions contained extracts of the transcript of the hearing on 8 December 2016 and copies of documents going to the history of the resident's occupation of the premises. 2. At the appeal hearing, the resident elaborated upon the appeal grounds (which have been set out earlier in these reasons). 3. In addition, the resident submitted that the operator had been aware since December 2014 that the resident had changed the locks to the premises. 4. The resident submitted that the operator had changed the locks "back to the master key when the resident was absent". 5. The resident submitted that the Tribunal was in error in not considering the impact on the resident of the operator's own breaches of the Contract. 6. The resident submitted that the Tribunal should have had regard to the resident's personal circumstances, that is, her poor health and financial limitations, including finding "permanent rehousing" near a hydrotherapy facility. Operator's (Respondent's) Submissions 1. With respect to the resident's application for an extension of time to file the appeal, the operator submitted that that extension should not be granted. 2. The operator referred to submissions made by the resident that the reason for her delay was that she had obtained advice from registry staff that the period in which to file an appeal was 28 days. No details have been given by the resident as to the dates that advice was given. In any event, the appeal was lodged outside the period of 28 days. 3. The operator further submitted that the Decision contains adequate reasons for the decision to terminate the Contract. Those reasons included the finding that the operator had afforded reasonable time to the resident to comply with the Contract and the Village Rules. The operator submits that the resident did not indicate that she would comply with the rules or the Contract, nor the Village Rules before the Decision was made and has not, since the Decision indicated that she would comply with the Contract or the Village Rules. 4. The operator submitted that the Tribunal "did not err in the exercise of its discretion concerning the period that the premises had not been occupied". The operator submitted that the premises were vacated by the resident in July 2016 when a removalist attended the premises and the electricity supply was disconnected. The operator submitted that there was evidence of the operator's need to provide accommodation to other war widows and that there is a demand for the accommodation which the operator provides. 5. The operator disputes the resident's contention that she was not afforded procedural fairness. The operator submits that the resident did not attend the Tribunal's initial hearing on 5 October 2016. That hearing was adjourned and the resident was directed to provide documentation to be relied upon by 2 November 2016. Such material was not provided by 2 November 2016. A hearing was set for 1 December 2016 but was adjourned by consent. The hearing then occurred on 8 December 2016. 6. The resident replied to the operator's submissions. Consideration 1. This is an appeal against an internally appealable decision and therefore is regulated by the provisions of s 80 of the NCAT Act. Accordingly, an internal appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds. Clause 12 of Sch 4 of the NCAT Act makes provisions for an Appeal Panel to grant leave. The text of cl 12 has been set out earlier in these reasons. 2. The Rules make provision for the time by which an appeal must be lodged. Rule 25(4) is relevant to this matter. It provides that unless the Tribunal grants an extension under s 41 of the NCAT Act, an internal appeal must be lodged, in the case of an internal appeal against a decision made in residential proceedings, within 14 days from the day on which the appellant was notified of the decision or given reasons for the decision (whichever is the later). These proceedings are residential proceedings: see cl 3 of the Rules. The Notice of Appeal states that the resident received the Decision on 14 December 2016. No evidence to the contrary has been provided. Accordingly, the appeal should have been lodged within 14 days of 14 December 2016. It was in fact lodged on 9 January 2017. 3. It is necessary for us to consider whether time should be extended for the lodgement of the appeal. 4. As the operator correctly submitted, this Tribunal has previously set out the criteria for consideration when deciding when to extend time. The decision in Jackson sets out the relevant considerations. These include the length of the delay, the reason for the delay and the appellant's prospects of success. In addition, the extent of any prejudice suffered by the respondent to the appeal is to be considered. In this case, the length of the delay was a matter of approximately two weeks. The reason for the delay was the resident's initial understanding that she had 28 days and then some delay in obtaining legal advice. Had 28 days been the relevant time period, the appeal would have been filed in time. The need to obtain advice is understandable in our opinion and it is reasonable to expect that there might be some difficulty in obtaining advice during the Christmas/New Year holiday period. The operator has not identified any particular prejudice by reason of the appeal being filed later than it should have been filed. The appellant's prospects for success are not capable of being described as poor. In our view, the resident has put forward a reasonably arguable case and it cannot be said that her prospects of success are so poor as to justify not extending time. 5. The operator has relied on statements in the Jackson case to the effect that time limits should generally be strictly enforced and that the purpose is to promote the orderly and efficient conduct of proceedings as well as to provide certainty for the parties to proceedings. We agree with those general statements. 6. It is our view that in the circumstances of this matter, the time for the lodgement of the appeal should be extended and leave granted to the resident to lodge the appeal. The reason for our decision to exercise our discretion in favour of the resident is that the period of delay is relatively short, there is no obvious prejudice to the operator and having regard to the time of the year during which the resident was required to consider whether to file an appeal, it would have been difficult to obtain legal advice and services. Accordingly, we will make an order exercising the power we have under s 41 of the NCAT Act to extend time. 7. We will now turn to the grounds of appeal. Later in these reasons, we state that the appeal must be upheld because of the operator's failure to comply with reg 55 and s 131. But for that matter, we would have dismissed the appeal. We explain our reasons in the following paragraphs. Ground 1 1. The resident's submission that the Tribunal erred in finding, in the absence of evidence, that the resident had breached her agreement by failing to give access to the property for a fire alarm inspection is rejected. 2. It was common ground that the operator had sent to all residents a letter dated 20 April 2016 giving notice of an intention to commence (on Tuesday 3 May 2016) to undertake testing in each unit of fire blankets and fire extinguishers. It was also common ground that the operator sent to the resident a letter dated 3 May 2016 referring to the earlier letter of 20 April 2016 stating that access to the resident's unit was unable to be achieved on 3 May 2016. It was also common ground that the resident provided access on the following day (4 May 2016). The Tribunal found that the conduct of the resident constituted a breach of clause 5.01(e) of the Contract. That clause provides that the operator may enter the premises in order to carry out general maintenance, but only if 7 days' notice has been given. In our view, the operator was entitled to have access (having given 7 days' notice by its letter of 20 April 2016) on either 3 or 4 May 2016 and the breach of the resident was her conduct in denying that access on 3 May 2016. Allowing such access on 4 May 2016 only by reason of being personally present does not justify the conclusion that she has not breached her contractual obligations. The resident had admitted changing the master lock and the practical consequence of that step was to deny to the operator, the operator's right to enter in the circumstances described by clause 5.01(e) of the Contract. The fact that access was provided with the cooperation of the resident on 4 May 2016 does not, as stated above, lead to the conclusion that the resident was not in breach. The operator foreshadowed testing on 3 May 2016 between 9:00am and 3:00pm and on Wednesday 4 May 2016 between 8:30am and 12:00pm. That right to enter was curtailed by the conduct of the resident and accordingly, on the basis of the evidence, the Tribunal was not in error in concluding that the resident had breached her obligations under clause 5.01(e). In addition, the resident breached the Village Rules. Ground 2 1. Ground 2 concerns the assertion by the resident that the Tribunal failed to consider whether the resident had acted unreasonably. In our view, there was no obligation on the Tribunal to consider whether the resident had acted unreasonably. Rather, the obligation upon the Tribunal was to consider whether the facts as found constituted a breach of clauses 5.01(e) and 6.01. For the reasons given above under Ground 1, we are of the view that the Tribunal was correct in coming to the finding of a breach. Ground 3 1. This ground concerns the assertion by the resident that the Decision contains insufficient reasons for the finding that there was a breach of the Contract such as to justify termination. There were two relevant breaches. The first was the failure to allow access except in the circumstances described above (i.e. access occurred on 4 May 2016 in the presence of the resident). The second breach was the changing of the locks. That was found to have been a breach of condition 6.01 of the Contract and the Village Rules. The resident did not dispute that she had changed the locks. Rather, her submission was that the operator knew that the locks had been changed since December 2014 and also that it was necessary for her to change the locks because of security concerns. 2. In our view, the Decision does sufficiently consider the circumstances of the case and comes to the finding that the breach is such as to justify the termination. In other words, we do not accept the resident's assertion that the Decision contains insufficient reasons for the finding that there was a breach such as to justify termination. The Decision refers to both the breach of clause 5.01(e) and the breach of condition 6.01 and also to other factors. Those other factors are that the operator had afforded a "reasonable time to the respondent for compliance with the contract and the village rules", that the relevant premises (unit 44) had not been occupied by the resident since June 2016 and the broader requirements of the operator to provide low cost housing to war widows. 3. The resident described factors which were said to have not been considered by the Tribunal. The first of these is the type of breach. In our view, this submission is to be rejected. The findings are precise, namely a breach of clause 5.01(e) and of condition 6.01. The circumstances of the breach are stated. The resident states that there is no consideration of the seriousness of the breach. The breach arose out of the operator's desire to conduct a fire safety check and the resident's conduct in changing security locking devices. Clause 6.01 of the Village Rules states "Under no circumstance may residents have these locks changed". In our view, the purpose of the inspection and the two stated rules self-evidently are serious matters because they relate to the safety of the particular premises and the complex in which the premises are situated. 4. Another factor which the resident stated had not been included for consideration was whether the breach was remediable or had been remedied. The Decision records that the operator had afforded reasonable time for the resident to comply referring back to condition 6.01. Accordingly, the Tribunal did give consideration to the fact that the resident had not remedied the breach as at the date of the issue of the notice of termination. There was evidence given to the Appeal Panel that the operator had itself remedied the breach by changing the locks back to a master key system. In our view, that conduct by the operator was necessary and sensible in order to preserve its need for access to the particular unit and does not constitute conduct which the Tribunal should have taken into account in concluding that the resident's conduct did not justify the residency being terminated. 5. The final factor which the resident referred to as one not considered by the Tribunal was the impact on neighbours or other relevant persons. In fact, the Tribunal did give consideration to other relevant persons being a class of persons which the operator considered to be relevant, namely war widows. The resident has not identified other relevant persons who were not considered but who should have been considered. 6. Ground 3 should be rejected because in our view the Decision contains sufficient reasons for the orders made and, in addition, the Decision discloses that the Tribunal considered whether the breaches were sufficient to justify termination. Ground 4 1. Ground 4 concerns the submission by the resident that the Tribunal erred in the exercise of its discretion to terminate the Contract because it took into account the resident's absence from the property as a factor that weighed towards the exercise of the discretion to terminate. The resident submitted that her absence arose because of continued repairs problems with mould and that it was unsafe for her to reside in the premises. 2. In the Decision, the Tribunal found that the resident had not occupied the residence since about June 2016. That finding was uncontroversial. The Decision did not address the resident's assertion that she left the premises because of mould and repair issues. In our view, this omission by the Tribunal was understandable because the reason for her absence was not relevant to the findings of breach of clauses 5.01, 6.01 and the Village Rules. The finding that the resident was absent was relevant to the finding that the operator had a demand from Legacy widows which could be catered for by reason of the residence being vacant. In our view, the omission to make reference to the reason for the resident leaving the premises (that is, according to her, mould and repair issues) did not disclose a failure to take into account a relevant consideration. In addition, those matters were not in our view central to the decision to terminate. The matters which were central to the decision to terminate were the breaches of the Contract and rules. Ground 5 1. In our view, there was no denial of procedural fairness. Prior to the hearing, the resident had sought an adjournment of the hearing because of her unavailability. However, she in fact attended the hearing. The resident has supplied the Appeal Panel with a copy of a transcript prepared by her of the hearing. There is no evidence that the operator agrees that it is an accurate transcript. Assuming that it is accurate, it discloses that the resident said that she was not ready for or prepared for the hearing. The transcript revealed the Member stated that the application had been adjourned twice previously. The Member exercised his discretion to continue with the hearing. There was no evidence either from the transcript or having regard to the submissions made by the resident in this appeal that the decision to continue the hearing on 8 December 2016 denied the resident procedural fairness. Indeed the transcript reveals that the resident was able to participate in the hearing. Further Grounds of Appeal 1. The first further ground concerns ss 131 and 134 of the RV Act, reg 38 and Sch 5 of the RV Regulation. 2. In the circumstances of this matter, section 131 requires an operator intending to apply to the Tribunal for an order terminating a "residence contract" to give the resident written notice of that intention and that such notice is to be given within the time prescribed by the regulations. Regulation 55 is the relevant regulation and we will refer to its effect subsequently in these reasons. 3. Regulation 38 provides that an application to the Tribunal under a section of the RV Act may be made only within the time prescribed in Sch 5. The effect of Sch 5 is that an application under s 134(1) must be made only within the period which is described as "no later than 14 days after service of termination notice". In the circumstances of this matter, the operator's application to the Tribunal should have been lodged on or before 17 August 2016 because the evidence was that the notice of termination was served on 3 August 2016. 4. The operator's application was in fact filed on 2 September 2016, which is approximately 3 weeks after 17 August 2016. Section 41 of the NCAT Act provides that the Tribunal may, of its own motion or on application by a person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. 5. Accordingly, we are able to extend time if we are of the opinion that we should do so in the circumstances of this matter. The considerations for extending time have already been explained earlier in this decision in the context of considering the resident's late lodgement of her Notice of Appeal. In this case, the length of the operator's delay in filing the application was a matter of three weeks. No reason for the delay has been provided. Equally, the resident has not provided any evidence that her position in resisting the operator's application was prejudiced by reason of the operator's application not being filed on or before 17 August 2016. 6. The notice of termination dated 3 August 2016 set out the breaches alleged by the operator against the resident. The notice referred to the resident's breach of clauses 5.01 and 6.01. The notice then stated that as the resident had failed to "meet our request to participate in mediation to resolve this you are hereby requested to provide vacant possession of your unit 44 on 19 August 2016". Accordingly, the terms of the notice gave the resident until 19 August 2016 to provide vacant possession. If the operator wanted to wait to see if the resident complied with the notice, the earliest date upon which the operator could have commenced an application in the Tribunal was 20 August 2016. 7. Given the relatively short period of delay and the fact that the resident has not provided any evidence of prejudice to her position by reason of that delay, it is our view that the operator could have the benefit of an order extending the time for lodgement of the application to 2 September 2016, subject to what we say below concerning reg 55. 8. The resident's further ground was that the application must have been lodged up to thirty days after the alleged breach became known to the operator. The basis for that requirement has not been stated by the resident and we are of the opinion that there is no such requirement. 9. However, reg 55 of the RV Regulation provides: 55 Termination notice (1) For the purposes of section 131 (2) of the Act, a termination notice is to be in the relevant form set out in Part 4 of Schedule 1. Note : A termination notice does not have to be given if the application to terminate a residence contract is made on the grounds of the resident's causing serious damage to the village or serious injury to the operator, an employee of the operator or another resident. See section 135 of the Act. (2) Except in the case of an application referred to in section 136 of the Act, the notice is to be given no later than at the time at which the applicant makes the application to the Tribunal, but no earlier than 14 days before that time. (3) If the person who gave the notice does not apply to the Tribunal for the relevant order within 14 days after giving the notice, a fresh termination notice must be given (in accordance with subclause (2)) before the application may be made. 1. The effect of reg 55 in the circumstances of this matter is that the notice under s 131(2) of the RV Act must have been given before 2 September 2016 (when the application was lodged) but no earlier than 14 days before 2 September 2016 (namely 19 August 2016). Here, the notice was given on 3 August 2016 which was earlier than 14 days before 2 September 2016. Therefore s 55 has not been complied with and s 55(3) becomes relevant. That provides that if the person who gave the notice (in this case, the operator) does not apply to the Tribunal for the relevant order within 14 days after giving the notice, a fresh termination notice must be given before the application may be made. 2. In summary, the effect of reg 55 is that the operator's application could not be made if it relied upon the 3 August 2016 notice and the effect of reg 38 and Sch 5 was that the application was required to have been made within 14 days of 3 August 2016 (i.e. 17 August 2016). If time is extended for the filing of the application, reg 55 is still not complied with. 3. We refer to the further additional ground made by the resident that s 131 requires that an operator intending to apply to the Tribunal for an order terminating a residence contract must give to the other party written notice of that intention. The notice is to be given in the form prescribed by the regulations. The resident referred to a letter dated 25 July 2016 which did not give notice of intention to seek a termination order. However, the notice of termination dated 3 August 2016 refers to s 134 of the RV Act and refers to an "Order for the termination and vacant possession due to breach by resident of village contract or village rule". In our view, the substance of this notice was to give to the resident notice that the operator intended to apply for an order terminating the residence contract. 4. Section 131(3) provides that the Tribunal is not to make an order terminating a residence contract unless it is satisfied that the notice (if required) has been duly given. In our view, the notice was not duly given because it was given earlier than the time prescribed by reg 55(2). 5. By reason of our conclusion that the notice of termination of 3 August 2016 did not comply with s 131(2) and reg 55(2), the Tribunal was required not to make an order terminating the residence contract. In the circumstances of this matter, a fresh notice was required to have been given by the operator (see reg 55(2)). In making the termination order the Tribunal has made an error of law. 6. Accordingly, the appeal must be upheld. Orders 1. The Appeal Panel makes the following orders: 1. The time for lodgement of the appeal is extended to 9 January 2017; 2. Appeal upheld; 3. The orders made in proceedings RV 16/39663 are set aside; and 4. Application RV 16/39663 is dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar 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: 19 June 2017