Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Johnson v Camilleri Properties Pty Ltd [2018] NSWCATAP 239 Hearing dates: 25 September 2018 Date of orders: 10 October 2018 Decision date: 10 October 2018 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President J McAteer, Senior Member Decision: (1) The appeal is upheld for the purposes of order 2 below and is otherwise dismissed; (2) The order made on 22 June 2018 as amended by the order made on 29 June 2018 is modified by adding at the end of the existing order, the words "within 28 days from today (i.e. from 25 September 2018)"; and (3) The time for the lodgement of the appeal is extended to 20 July 2018 Catchwords: Extending time for appeal, adequacy of reasons, obligation to identify grounds of appeal Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Residential (Land Lease) Communities Act 2013 Residential (Land Lease) Communities Act 2013 Cases Cited: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Category: Principal judgment Parties: Ian Johnson (Appellant) Susan Johnson (Appellant) Camilleri Properties Pty Ltd (Respondent) Representation: No appearance from the Appellants C Johnston (Respondent) T Gillett (Respondent) File Number(s): AP 18/31993 Publication restriction: Unrestricted Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 22 and 29 June 2018 Before: R Harris, General Member File Number(s): RC 18/17708 REASONS FOR DECISION Background 1. This is an appeal from a decision made in the Consumer and Commercial Division of the Tribunal. The decision was made on 22 June 2018 and amended on 29 June 2018 under s 63 of the Civil and Administrative Tribunal Act 2013 (NCAT Act) to read as follows: 1. The respondent homeowners must comply with the terms of residential site agreement by removing the carport structure from the residential site which the Tribunal finds has been erected without written consent of the operator. 1. The above is the full text of the decision. It can be seen that it consists only of an order and a finding that no written consent was given. There are no other reasons, or a statement that oral reasons were given. 2. We will refer to the decision as the "Decision". We will refer to the Appellants as the "Respondent Homeowners" and to the Respondent to this appeal as the "Operator". 3. The Decision arose out of an application filed by the Operator in which the Operator sought an order that the Respondent Homeowners should comply with the Residential (Land Lease) Communities Act 2013 (the RLLC Act), the Valla Beach Villages Rules and the provisions of the residential site agreement. That application had attached to it extracts from the residential site agreement as well as extracts from the Valla Beach Village Park Rules. In addition, there was a statutory declaration from Mr Grant Camilleri dated 13 March 2018 (Annexure E to the application) together with some photographs and correspondence. 4. The Operator sought an order that the Respondent Homeowners remove a carport structure from the site they occupy pursuant to a residential site agreement. The Operator described the structure as a "carport structure" and the Respondent Homeowners described the structure as a "Mimosa 3 by 4 M Porto Lean To". The Operator alleged that the carport structure could only be permitted with the prior written consent of the Operator. The Respondent Homeowners contended that although they did not have written consent, they nevertheless, had the oral consent of the manager at the relevant time, Mr Camilleri. 5. As indicated above, the Decision was initially published on 22 June 2018 and then was amended on 29 June 2018. The only amendments were these: 1. In the 29 June 2018 decision, the expression "resident homeowners" had been used, whereas as in the earlier decision, the word "tenant" had been used; and 2. In the 29 June 2018 decision, the expression "site agreement" was used, whereas in the 22 June 2018 decision, the expression "residential tenancy agreement" was used. 1. The Respondent Homeowners lodged a Notice of Appeal on 20 July 2018. That document states that the date of the decision was 22 June 2018 and that the date that the decision was received was 29 June 2018. We have treated the Notice of Appeal as an appeal from the amended decision of 29 June 2018. 2. The Tribunal made directions on 14 August 2018. One of the directions was for the Respondent Homeowners to provide a sound recording of the hearing at first instance "if oral reasons were given and/or what happened at the hearing was being relied on". It appears that the Respondent Homeowners applied for a copy of the sound recording and were informed by letter from the Registry dated 21 August 2018 that a copy of the sound recording cannot be provided "due to an equipment malfunction". 3. There is no evidence that either party applied for a written statement of reasons pursuant to the provisions of s 62 of the NCAT Act. 4. Accordingly, at the hearing of the appeal, the only written material concerning the Decision is the order (and finding) recorded in [1] above. 5. By email dated 24 September 2018 received by the Tribunal at 4:41pm, the Respondent Homeowners advised that they would be unable to attend the hearing set down for the following afternoon "due to work commitments". The email stated that the Respondent Homeowners relied on the evidence that "we submitted to the Panel and to Mr Chris Johnston". They requested that the "ruling" made on 22 June 2018 be overturned and that they assumed that the hearing would be heard "with us not being present". 6. At the hearing of the appeal, Christopher Johnston (General Manager of the Operator) and Mr Tony Gillett (Manager of the village the subject of these proceedings) represented the Operator. Both were sworn in and gave the evidence which we refer to later in these reasons. Grounds of Appeal 1. In the Notice of Appeal the Respondent Homeowners (the Appellants in this appeal) submitted that they should be allowed to keep their "car shelter" in place. They acknowledge that written permission was not given to them but they say that "verbal permission" had been given by Mr Grant Camilleri. Reply to Appeal 1. The Operator (the Respondent in this appeal) filed a Reply to Appeal. The Operator denied the allegation that the manager of the park had failed to perform a duty to record in writing the alleged oral permission. The Operator asserted that written permission had never been given. Respondent Homeowners' Submissions 1. The Respondent Homeowners have provided written submissions. They assert that they requested permission for the "temporary car shelter" from Mr Camilleri who gave verbal permission. They assert that he gave verbal permission in respect of other matters which are identified in the written submissions. These other matters concern solar panels fitted to a roof, fencing around the back garden for dogs, a concrete driveway and a garden on adjacent land opposite lot 179. Operator's Submissions 1. The Operator has provided a copy of the original Application and written submissions, which may be summarised as follows: 1. There is no evidence on the Operator's file of permission for the carport having been given by Mr Camilleri orally. Mr Camilleri denies giving oral permission; 2. The Valla Beach Village consists of 164 manufactured homes and/or relocatable homes. Only one home (namely that of the Respondent Homeowners) has a carport added to the site; 3. The Respondent Homeowners are required to obtain written permission for the erection of a carport and the allegation of oral permission is disputed. Attached to the original application was a statutory declaration from Mr Camilleri (the resident manager at the time) whose statutory declaration states that he denies giving verbal permission to the Respondent Homeowners to put a "Mimosa 3 by 4 M Porto Lean To on their site"; and 4. The Operator submitted that it is the responsibility of the Respondent Homeowners to obtain written permission. The submissions referred to the provisions of the Valla Beach Rules and the RLLC Act which, the Operator submitted outlines the Respondent Homeowners' responsibilities. These include not to park vehicles on grassed areas, only on driveways. In this case, it is submitted by the Operator that the carport is on a grassed area. Submissions in Reply 1. The Respondent Homeowners supplied an email setting out their submissions in reply. They confirm that the "temporary car shelter" was installed in 2016. Appeal Hearing 1. As indicated above, Mr Johnston and Mr Gillett gave sworn evidence at the appeal hearing. 2. The evidence of Mr Johnston can be summarised as follows: 1. One of the Respondent Homeowners (Mrs Johnson) has been a resident since 2014 but in 2016 a fresh residential site agreement was entered into. This was an agreement between her and Mr Johnston as residential homeowners, and the Operator as the other party to the residential site agreement; 2. Mr Camilleri (who swore the statutory declaration referred to above) was the manager of the site until August 2017 when Mr Gillett became the manager; and 3. Mr Johnston was present at the hearing on 22 June 2018. He can recall that the Member after hearing the evidence and submissions gave his reasons orally. Mr Johnston cannot remember precisely what the Member said, but remembers that the Member spoke for approximately 10 to 15 minutes. Mr Johnston recalls that the Member found that there was no written permission given for the installation of a carport and had approval been sought by the Respondent Homeowners, it was unlikely that it would have been given. He recalls the Member referred to the fact that the carport was not in keeping with the aesthetics of the site. 1. Mr Gillett gave evidence. He too was at the hearing and remembers that the Member gave oral reasons which took some time to be delivered at the conclusion of the hearing. Decision 1. At the conclusion of the hearing of the appeal, we indicated to Mr Johnston and Mr Gillett that we would make the following orders: 1. Appeal upheld for the purposes of making order 2 but the appeal is otherwise dismissed. Written reasons to follow; and 2. The order made on 22 June 2018 (as amended on 29 June 2018) is modified by adding at the end the words "within 28 days from today (i.e. from 25 September 2018)". 1. What follows are our reasons for making the above orders. 2. This is an internal appeal: see s 80 of the NCAT Act and accordingly is an appeal as of right on any question of law, or with leave of the Appeal Panel on any other grounds (s 80(2)(b). 3. The Grounds of Appeal which do not involve questions of law are regulated by cl 12 of Sch 4 of the NCAT Act. 4. An internal appeal must be filed within the time specified in r 25 of the Civil and Administrative Tribunal Rules 2014 (the Rules) and in the case of appeals arising out of the RLLC Act, an appeal must be lodged within 14 days from the date in which the appellant was notified of the decision or given reasons for the decision (whichever is the later: see r 25 and r 3). The Respondent Homeowners state that the written reasons were not received until 29 June 2018. This appears to refer to the order made on 22 June 2018. It is not clear when the Respondent Homeowners received the amended orders of 29 June 2018 but we assume it was received by post some days after the 29 June 2018. Accordingly, the Respondent Homeowners had until mid or late July to file the Notice of Appeal. The Notice of Appeal was in fact filed in 20 July 2018 and may be out of time. 5. The Appeal Panel may extend time for the lodgement of an appeal: see s 41 of the NCAT Act. The principles which govern whether time should be extended have been set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. That decision stated that it is necessary to consider the following: 1. The length of the delay; 2. The reason for the delay; 3. The appellant's prospects of success; and 4. The extent of any prejudice suffered by the respondent to the appeal. 1. Here, the length of the delay (if there was a delay) was very short (at most from 14 July to 20 July 2018). No reason for the delay has been provided. The Respondent Homeowners' prospects of success are dealt with subsequently in these reasons. There is no evidence of any prejudice to the Operator. 2. In the circumstances, we think it appropriate to make an order extending time for the filing of the appeal. Our reason is that the delay (if there was one) was relatively short and there is no evidence that the Operator has suffered any prejudice by reason of the delay. 3. The Tribunal has an obligation to provide adequate reasons and a failure to provide reasons constitutes an error of law (see Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69). However, an appellant has an obligation to demonstrate that the reasons given were inadequate. We accept the evidence of Mr Johnston and Mr Gillett that reasons were given orally. In this case, the Respondent Homeowners have not asserted, nor have they provided any evidence that the reasons which were given orally by the Member were inadequate. 4. Although we cannot determine whether the reasons were adequate, there is no assertion by the Respondent Homeowners that they were inadequate. In addition, the Respondent Homeowners could have, but apparently have not, made a request for a written statement of reasons. 5. We are of the view that in the absence of evidence that the oral reasons were inadequate, we should assume that they were adequate. 6. Furthermore, based on the material before us, there was material available to the Member to make the orders which were made. That material is described in the following paragraphs. 7. The following appears to be the case: 1. The agreement between the parties required written permission for the installation of a carport. There is no evidence that permission was provided in writing; 2. The Respondent Homeowners contend that permission was given orally by Mr Camilleri. Mr Camilleri's statutory declaration refutes that; 3. It is reasonable to conclude that the Member found (as recorded in the brief written statement of reasons) that there was no written permission. It is also reasonable to conclude that the Member was not satisfied that the evidence established to his satisfaction that oral permission had been given; 4. Clause 19.1 of the site agreement required the resident "not to attach any fixture or renovate, or alter or add to the residential site without the park owner's written permission". The carport may not have been a fixture, but this clause goes beyond fixtures to impose upon the resident an obligation not to alter or add to the residential site; and 5. There is a similar prohibition in clause 41 of the site agreement which requires the resident not to build, alter or add or extend any structure, including any carport. The Village Rules contain similar provisions. 1. Accordingly, it appears uncontroversial that the Respondent Homeowners cannot install the structure they have installed without permission. There is no evidence of written permission and the parties were in dispute as to whether oral permission had been given. 2. In the circumstances, the Decision and the evidence given at the appeal hearing by Mr Johnston and Mr Gillett do not disclose any error of law, or any other ground for upholding the Respondent Homeowners' appeal. 3. For the above reasons, the appeal must be dismissed. 4. We note that the Decision does not impose upon the Respondent Homeowners a date for the removal of the offending structure. Accordingly, we think it necessary to modify the orders by adding a date by which the structure must be removed. In our view, a reasonable time to do so is one month from the date of the appeal hearing. Orders 1. Accordingly, the Appeal Panel makes the following orders: 1. The appeal is upheld for the purposes of order 2 below and is otherwise dismissed; 2. The order made on 22 June 2018 as amended by the order made on 29 June 2018 is modified by adding at the end of the existing order, the words "within 28 days from today (i.e. from 25 September 2018)"; and 3. The time for the lodgement of the appeal is extended to 20 July 2018. ********** 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: 10 October 2018