Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Craig v Silva Portfolios Pty Ltd t/as Ballina Waterfront Village & Tourist Park [2018] NSWCATAP 79 Hearing dates: 20 November 2017 Date of orders: 03 April 2018 Decision date: 03 April 2018 Jurisdiction: Appeal Panel Before: K Rosser, Principal Member S Frost, Senior Member Decision: (1) The appeal is allowed. (2) The proceedings are remitted to the Consumer and Commercial Division of the Tribunal to determine: (a) whether to extend the period of time for the lodgement of the original application to the Tribunal, and (b) if the period of time is so extended – the monetary amount (if any) to which the Appellant is entitled by way of refund of sewerage charges paid to the Respondent. (3) The parties may provide new evidence in the remitted proceedings. Catchwords: APPEAL – residential parks – whether sewerage charges are "sanitary charges" – whether a term of an agreement requiring a resident to pay "any excess garbage and sanitary charges" requires the resident to pay all sanitary charges or only excess sanitary charges Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Residential (Land Lease) Communities Act 2013 Residential (Land Lease) Communities Regulation 2015 Residential Parks Act 1998 Residential Parks Regulation 2006 Cases Cited: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Category: Principal judgment Parties: Wilma Craig (Appellant) Silva Portfolios Pty Ltd trading as Ballina Waterfront Village & Tourist Park (Respondent) Representation: Northern Rivers Community Legal Centre (Appellant) Heydons Lawyers & Attorneys (Respondent) File Number(s): AP 17/39282 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: [2017] NSWCATCD 71 Date of Decision: 18 August 2017 Before: W Priestley, General Member File Number(s): RC 17/23503 Reasons for decision Introduction 1. This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) against a decision made in the Consumer and Commercial Division (CCD) of the Tribunal on 18 August 2017. 2. Mrs Craig, the appellant, is a resident in a residential park owned by the respondent (the Park Operator). In her application to the CCD Mrs Craig had asked the Tribunal to confirm that she was not liable to pay certain sewerage charges to the Park Operator, and that she was entitled to a refund of amounts she had already paid. Her application was unsuccessful, the Tribunal deciding that the charges were validly imposed on her by the Park Operator and that no refund was payable. 3. We have decided to allow the appeal and to remit the proceedings to the Consumer and Commercial Division for further consideration. We will explain why. Background and the issues before the Tribunal below 1. In June 2015 Mrs Craig and the Park Operator entered into an agreement (the Site Agreement) under which Mrs Craig was entitled to occupy an identified site in the Park Operator's residential park. Residential parks were regulated at the time by the Residential Parks Act 1998 (the old Act). 2. The Site Agreement specifies who is to pay for a range of rates, taxes and other charges. Among the charges Mrs Craig agrees to pay are 'any excess garbage or sanitary charges' in connection with the residential site (under clause 5.4 of the Site Agreement). 3. Up until late 2015 the Park Operator did not ask Mrs Craig to pay any charge under clause 5.4. 4. Then things changed. The Park Operator notified Mrs Craig that it was introducing a sewerage charge, with effect from 1 November 2015. The Park Operator claimed to be entitled to impose the charge as a consequence of the introduction of new legislation regulating residential parks – the Residential (Land Lease) Communities Act 2013 (the new Act). The commencement date of the new Act was 1 November 2015, the same date as the introduction of the proposed new sewerage charge. 5. Mrs Craig disputed the introduction of the sewerage charge, and brought the question of its validity to the Tribunal for determination. In her application to the Tribunal she also sought 'recovery of monies paid for this unlawful charge'. 6. The Tribunal found against Mrs Craig, upholding the validity of the charge and dismissing her claim for a refund. 7. It held that the sewerage charge was a 'sanitary charge' that the Park Operator was entitled to impose on Mrs Craig. It was not a 'new fee or charge permitted by' the new Act (which would have prevented the Park Operator from recovering it) because it was always capable of being charged to Mrs Craig under the Site Agreement. The appeal 1. The grounds of appeal specified in the Notice of Appeal are: 1. The Tribunal erred in finding that a sewerage charge was valid and payable under the old Act; 2. The Tribunal erred in not applying the provisions of Schedule 2, clause 15(2) of the new Act (relating to 'new fees or charges'); 3. In the alternative, if the sewerage charge is a 'sanitary charge', then the Tribunal erred in finding that Mrs Craig was required to pay 'all' sanitary charges rather than only 'excess' sanitary charges. 1. The appeal was heard at the same time as appeal proceedings AP 17/36502. This was an appeal brought by Margaret Reckless against the Park Operator, which concerned electricity charges as well as sewerage charges. We have separately published reasons for decision in relation to that appeal. Consideration of the appeal grounds Ground 1 1. The Tribunal below accepted, at [17], the Park Operator's submission that the meaning of 'sanitary' is wide enough to encompass 'sewerage', adding: [T]here was no challenge to such an interpretation by the applicant. 1. At the appeal hearing Mr Beilby, who represented Mrs Craig, accepted that to press Ground 1 on the basis that the sewerage charge was not a sanitary charge would be to pursue a matter not raised in the Tribunal below. It is not common for the Appeal Panel to allow an appellant to take that course; the general expectation is that an appeal is just that – an appeal from the Tribunal's original decision. Allowing an issue to be agitated before the Appeal Panel where that issue was not raised before the Tribunal at first instance is an unsatisfactory way of dealing with things. In addition, it is often unfair to the other party. 2. Nevertheless, in this particular case, the Park Operator's representatives did not oppose our allowing Mrs Craig to press Ground 1. They acknowledged that the proper meaning of clause 5.4 is an important issue not only for Mrs Craig, but also for the many other residents of its residential park, and other residential parks like it where an identical clause is contained in a resident's site agreement. In the circumstances it is appropriate that we address the appeal ground. We can deal with it briefly. 3. We perceive no error in the Tribunal's conclusion that a sewerage charge answers the description 'sanitary charge'. 'Sanitary' is an adjective describing matters related to health, cleanliness and precautions against disease. A charge for the removal of sewage and other waste is aptly described as a 'sanitary charge'. 4. Furthermore, it is consistent with the structure of clause 5 of the Site Agreement (in which the types of charges set out in the various subclauses are methodically and deliberately separated from each other) for a sewerage charge to be grouped with a garbage charge. Both concern the removal of waste from the site. Not only textually, but also contextually, a sewerage charge is a 'sanitary' charge for the purposes of the Site Agreement. 5. But there is still the question whether it was capable of being charged under the old Act. If not, then it could not be validly imposed when the new Act came into operation. 6. The Tribunal found the sewerage charge was capable of being charged under the old Act, and we agree. 7. Clause 5 in Schedule 2 to the new Act provides that agreements entered into under the old Act (like the Site Agreement in this case) remain valid after the commencement of the new Act if they have not been terminated. It is accepted here that the Site Agreement has not been terminated. It follows that any term of the Site Agreement remains in force (provided, of course, that it does not offend any provision of the old legislation – which would have made it invalid from the very beginning). 8. Clause 5.4 of the Site Agreement requires Mrs Craig to pay sanitary charges, and that includes sewerage charges. Such a provision in a pre-existing agreement certainly did not offend the old legislation. Indeed, clause 5.4 of the Site Agreement is in virtually the same terms as clause 16(3) of the Residential Parks Regulation 2006, made under the old Act, which required a resident to pay 'any excess garbage or sanitary charges'. 9. Ground 1 is not made out. Ground 2 1. Clause 15 in Schedule 2 to the new Act provides as follows: 15 Fees and charges (1) Any fees and charges which were validly paid or received under the repealed Act are not affected by this Act. (2) Any new fee or charge permitted by this Act does not apply to any agreement entered into before the commencement of the relevant provisions of this Act. (3) Fees for late payment of utility charges are not payable for utilities unpaid at the commencement of the relevant provisions of this Act. 1. Mrs Craig submits that the sewerage charge imposed on her from 1 November 2015 is a 'new fee or charge', and in light of clause 15(2) above she cannot be required to pay it. 2. However, as we have already explained, and as the Tribunal below found, Mrs Craig was liable to pay sewerage charges from the time she entered into the Site Agreement in April 2014. The fact that the Park Operator did not force her to pay a charge that she was liable to pay under the Site Agreement does not make the charge a 'new' charge when the Park Operator eventually decides to enforce its rights. 3. Clause 15(2) in Schedule 2 to the new Act does not assist Mrs Craig. Ground 2 is not made out. Ground 3 1. Ground 3 asks us to determine the meaning of clause 5.4 of the Site Agreement. 2. The competing positions taken by the parties can be summarised as follows: * The Park Operator submits that the ordinary and natural meaning of the words in the clause is that the word 'excess' forms a compound expression applying only to 'garbage' and not to 'sanitary' as well. * Mrs Craig submits that the clause requires her to pay only 'excess' garbage charges and 'excess' sanitary charges. In practical terms, her submission is that the words 'any excess' modify both the following expressions – 'garbage (charges)' and 'sanitary charges'. 1. The question for us is which of those competing positions provides the more natural meaning of the clause? We think the latter. It is more natural to read the clause as if the true composite expression is 'garbage and sanitary charges', and with 'any excess' modifying both of them. That is not only a possible reading of the clause; it is the more likely one. 2. The Park Operator's preferred reading, although possible, is somewhat tortured and artificial. The fact that tells most heavily against it is that the word 'charges' does not appear immediately after the word 'garbage'. That leaves the expression 'garbage charges' incomplete; the expression only becomes whole when the words 'sanitary charges' are added. It cannot then be the case that those very same words – 'sanitary charges' – are to be carved off, so that the expression 'any excess' does not modify them. That would be to do too much violence to the language. 3. So, in summary, Mrs Craig must pay any garbage or sanitary charges, but only if they answer the description of an 'excess' charge. She is not liable under clause 5.4 to pay a standard (that is, non-'excess') garbage charge, and she is not liable under clause 5.4 to pay a standard (that is, non-'excess') sanitary charge. Charges falling within either of those categories cannot be recovered from Mrs Craig under clause 5.4. 4. The Park Operator complains that this interpretation of clause 5.4 'would always be inoperative' in the context of the Site Agreement in this case, since the local water authority, Ballina Shire Council, does not in fact charge 'excess' sewerage charges. But that argument ignores the fact that the Site Agreement does not refer, in terms, to sewerage charges, but to sanitary charges. There is no evidence one way or the other as to whether there may be any excess sanitary charges, other than sewerage charges, that may be capable of being imposed under clause 5.4. However, even if there are none, that provides no reason to settle upon the strained interpretation of clause 5.4 that the Park Operator urges upon us. 5. We allow the appeal on ground 3. Orders 1. Based on our conclusion in relation to appeal ground 3, Mrs Craig is entitled to a refund of any sewerage charges she has paid that are not 'excess' sewerage charges. 2. However, before we decide on the appropriate orders to make, there is an additional issue we need to address, and that is the timeliness of Mrs Craig's original application to the Tribunal. 3. In its reasons for decision, at [6], the Tribunal below noted that Mrs Craig's application to the Tribunal was triggered by the Park Operator's notice of its introduction of a sewerage charge from 1 November 2015. The notice is undated but it covers a billing period up to 10 December 2015 and would probably have been received by Mrs Craig on or shortly after that date. Mrs Craig's application to the Tribunal was not lodged until 17 May 2017, which is some 17 months later. 4. The Tribunal identified, correctly, that the new Act and the regulations under it (the Residential (Land Lease) Communities Regulation 2015) do not specify a time limit for making an application to resolve a dispute such as this. The Tribunal then concluded that the time limit must be regulated by s 14(1)(d) of the Limitation Act 1969, which prescribes a period of six years. The Tribunal added that if it was wrong in concluding that way, it would nevertheless grant an extension of time to Mrs Craig under s 41 of the NCAT Act 'because there is no prejudice to the respondent in doing so'. 5. In fact, the Tribunal was wrong to conclude that the time limit was regulated by the Limitation Act 1969. The correct position is that the time limit is set by the Civil and Administrative Tribunal Rules 2014 (NCAT Rules). Rule 23 of the NCAT Rules, dealing with 'General applications', provides in sub-rule (3) as follows: Unless the Tribunal grants an extension under section 41 of the Act, an application must be made: (a) in the case where enabling legislation specifies the period within which the application is to be made—within the period specified, or (b) in any other case—within 28 days from the day on which the applicant became entitled under the enabling legislation to make the application. 1. Rule 23(3)(b) applies here, so that Mrs Craig's application should have been lodged within 28 days of receipt of the notice from the Park Operator. 2. Having regard to that outcome, we have considered whether the alternative conclusion of the Tribunal below – that an extension of time would be granted under s 41 of the NCAT Act 'because there is no prejudice to the respondent in doing so' – amounts to a proper exercise of the discretion under s 41. We feel compelled to consider that question even though the parties did not raise the issue on the appeal. 3. In Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 the Appeal Panel set out at [18]-[22] the considerations that will generally be relevant in deciding whether or not to grant an extension of time in a particular case. Although the Appeal Panel there was specifically addressing the case of an appellant seeking to appeal out of time against a decision of the Tribunal at first instance, the considerations are equally applicable to the case of an applicant lodging an original application in the Tribunal. 4. The Appeal Panel's decision in Jackson specifies the potential prejudice to the respondent as one of the relevant considerations, but not the only one. Other considerations include the length of the delay in bringing the application, the reason for the delay, and the applicant's prospects of success. 5. The reasons of the Tribunal below in this case do not indicate that any of the considerations specified by the Appeal Panel in Jackson were taken into account besides the potential prejudice to the Park Operator. Since it is clear that Mrs Craig's original application to the Tribunal was made out of time, it is important that her extension of time application be dealt with fully, and in accordance with the Appeal Panel's guidance in Jackson. 6. In the circumstances, we make the following orders: 1. The appeal is allowed. 2. The proceedings are remitted to the Consumer and Commercial Division of the Tribunal to determine: 1. whether to extend the period of time for the lodgement of the original application to the Tribunal, and 2. if the period of time is so extended – the monetary amount (if any) to which the Appellant is entitled by way of refund of sewerage charges paid to the Respondent. 1. The parties may provide new evidence in the remitted proceedings. ********** 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: 03 April 2018