Birch v Riverside Village Management Pty Ltd t/as Gateway Lifestyle Riverside Village

[2018] NSWCATCD 79

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Birch and Others v Riverside Village Management Pty Ltd t/as Gateway Lifestyle Riverside Village [2018] NSWCATCD 79

Hearing dates:

25 October 2018

Date of orders:

27 November 2018

Decision date:

27 November 2018

Jurisdiction:

Consumer and Commercial Division

Before:

W Priestley, General Member

Decision:

1. In RC 18/17394 the respondent, Riverside Village Management Pty Ltd t/as Gateway Lifestyle Riverside Village is to pay the applicants, Douglas and Carmal Birch $12,500, plus costs of $2,200 immediately.

 

2. In RC 18/18945 the respondent, Riverside Village Management Pty Ltd t/as Gateway Lifestyle Riverside Village is to pay the applicants, Linda and Barry Birch $12,500 plus costs of $2,200 immediately.

 3. In RC 18/18957 the respondent, Riverside Village Management Pty Ltd t/as Gateway Lifestyle Riverside Village is to pay the applicants, Spencer Sharpe and Valda Hanshaw $12,000 plus costs of $2,200 immediately.

Catchwords:

Compensation

Legislation Cited:

Australian Consumer Law
Civil and Administrative Tribunal Act 2013
Fair Trading Act 1987
Residential (Land Lease) Communities Act 2013 sections 64, 156 and 157

Cases Cited:

BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
JLW (Vic) Pty Ltd v Tsilogou [1994] 1 VR 237
Robinson and Harman (1848) 154 ER 363 Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272

Texts Cited:

“Principles of Contract Law” Gooley, Radan and Vickovich, LexisNexis Butterworths 2014 3rd edition

Category:

Principal judgment

Parties:

In RC 18/17394:
Douglas Birch and Carmal Birch (Applicants)
Riverside Village Management Pty Ltd t/as Gateway Lifestyle Riverside Village (Respondent)

 

In RC 18/18945:
Linda Birch and Barry Birch (Applicants)
Riverside Village Management Pty Ltd t/as Gateway Lifestyle Riverside Village (Respondent)

  In RC 18/18957:
Spencer Sharpe and Valda Hanshaw (Applicants)
Riverside Village Management Pty Ltd t/as Gateway Lifestyle Riverside Village (Respondent)

Representation:

Applicants (self-represented)
Ms Toussaint (Respondent)

File Number(s):

RC 18/17394; RC 18/18945; RC 18/18957

Publication restriction:

Nil

REASONS FOR DECISION

The applications

1. All three applications seek orders for compensation from the respondent under section 157 of the Residential (Land Lease) Communities Act (‘the Act”). The basis of the applications is an allegation that the value of the applicants’ homes has been reduced, as a result of the respondent withdrawing access to a boat ramp at the rear of the community in which their homes are located.

Background

2. The major issues for determination are whether the applicants are entitled to any compensation under the Act, and if so, how much. The applicants’ position is that the loss of value to their homes is 10% of what they would be worth, but for the loss of access to the ramp. The respondent’s position is first, the Tribunal has no jurisdiction to award such compensation, and any remedy is confined to a reduction of site fees under section 64 of the Act. Secondly, the respondent asserts the removal of access to the ramp, has not resulted in any measurable reduction in the value of the applicants’ homes.

The hearing

3. All three applicants appeared at the hearing and represented themselves. The respondent was represented by Ms Toussaint, its property manager.

4. At the commencement of the hearing the Tribunal ordered that evidence in each matter be evidence in the others.

5. Each of the applicants was sworn and confirmed the instructions and comments attributed to them in the expert reports of Mr John Northfield, certified property valuer, are true and correct. As well as Mr Northfield’s report, the applicants relied on the statutory declarations and other documents, in the folders of materials they filed in accordance with directions made by the Tribunal.

6. The respondent relied on a report from Mr Luke Chadwick, a certified practising valuer. A telephone conference was held during the hearing with both valuers present, so the parties and the Tribunal could ask questions of them, and they would be able to hear and respond to each other’s comments.

7. The Tribunal has considered all of the documents lodged by the parties, and the (limited) oral evidence given at the hearing, in reaching its determination.

Findings

8. Barry and Linda Birch bought the home on residential site 28 at the residential community operated by the respondent on 31 March 2017, for $227,000.

9. Douglas and Carmal Birch bought their home on residential site 34 on 17 January 2017, for $231,000.

10. Spencer Sharpe and Valda Hanshaw bought their home on residential site 11 on 17 August 2016, for $227,000.

11. All three homes were bought from third parties, that is, none of the homes were bought from the respondent.

12. After buying their homes, the applicants then entered into site agreements for the sites their homes are located on, with the respondent.

13. The residential community is located about 4.5 kilometres from the coastal town of Evans Head in the Northern Rivers of NSW. The community, which is restricted to people over the age of 55, has facilities that include a basic colourbond shed-like recreational hall, BBQ facilities, on site management, and a swimming pool. The rear of the community adjoins the Evans River.

14. Located in Evans Head are shops and other retail outlets, schools, medical services, financial services and so on, and a well-constructed, all weather boat ramp, accessible to the public. The regional centres of Lismore and Ballina are about 30 – 40 minutes drive away.

15. Before buying the homes, each applicant received from the respondent a disclosure statement as is required by section 21 of the Act (see pages 18-36 of the folder of documents of Douglas and Carmal Birch). Section 6 of the disclosure statements is headed “Services and Facilities” then lists various facilities, including a boat ramp. In the same section, the question is posed “Are there any proposals to remove or substantially change a service or facility in the community?” The question is answered by the respondent “Yes – upgrade of current community Centre and Pool Area” That answer is then qualified by the words Note: From time to time the operator may have to limit or restrict access to some facilities or services as part of their normal maintenance program (emphasis in original document).

16. Section 9 of the disclosure statement is headed “Compliance with Legislation”, and relevantly says the community has the necessary approvals to operate under the Local Government Act 1993, and that in all other respects the operator is complying with their responsibilities under the residential (land lease) community laws and the Local Government Regulations.

17. In the Tribunal’s view, those parts of the disclosure statement mentioned above constitute representations, or promises, that there was a boat ramp at the community the applicants, and all other home owners, could use to launch their boats; that there was no legal or other impediment to its continued use; and that it was a permanent fixture of the community.

18. There was a dispute about some aspects of the quality of the boat ramp and the access to it. Mr Northfield describes it as constructed from concrete. Mr Chadwick says it is of earthen construction, about 500 metres from the southern section of the developed park area, and needs to be accessed by a dirt road which would be problematic in inclement weather. Mr Birch said in oral evidence the ramp is only about 100 metres from residences in the park. There is no evidence anyone has actually measured the distance and no scale maps are in evidence. Both experts say they have inspected the site. The boat ramp can be seen in the photographs at pages 19 and 21 of Mr Northfield’s report about Douglas and Carmal Birch’s home, and at page 17 of the reports from Mr Chadwick. The access road can be seen at pages 17 and 18 of Mr Northfield’s report. Doing the best I can from the plans and maps, it seems to be about 150 – 400 metres from the various sites, depending on where they are located within the community. The access road appears smooth, well compacted and reasonably wide, such that a two wheel drive vehicle would be able to tow a trailer along it, unless it was particularly wet.

19. Another aspect of the quality of the boat ramp in dispute, is whether it can be accessed at low tide. Mr Chadwick said it could not be. Mr Northfield said it could. As Mr Northfield had inspected the ramp at low tide, and Mr Chadwick hadn’t, I prefer Mr Northfield’s evidence on this. This is supported by the photographs of the ramp at page 19 of the applicants’ reports.

20. I find the boat ramp is of rudimentary construction (it appears from the photographs to be constructed from concrete, now partly eroded, or heavily compacted gravel, at the very top of the area before it descends into the river, and of compacted gravel and dirt towards the bottom). It is usable, accessible by two wheel drive vehicles, and has ample area near it in which to turn and reverse a trailer. In making findings about the quality of the ramp and access to it, I take into account it hasn’t been able to be accessed by vehicles, and hasn’t been maintained, since access was removed over 12 months before the experts inspected it.

21. Before buying their homes, the applicants inspected them, the community generally, and the boat ramp in particular. The un-contradicted evidence of all applicants is that they are, and were at the time of buying their homes, very keen fishing enthusiasts. They owned fishing boats, trailers to carry them on, and four wheel drive vehicles. As Mr Douglas Birch put it, “the boat ramp was the deal clincher”. By being able to launch their boats at the ramp the applicants did not have to make the round trip of about 9-10 kilometres to the public ramp at the Evans Head township, and incur the expense, time and inconvenience of doing so. After inspecting the ramp with Mr Powell, a representative of the respondent, Mr Douglas Birch, spoke to the respondent’s sales consultant and agent for the vendor, Chris Ryder, who confirmed the ramp was part of the respondent’s facilities.

22. On 4 May 2017, the respondent advised the home owners in the community there would temporarily be no access to the boat ramp, while development works were underway. These works related to the construction of a large number of new homes at the community. In the course of obtaining the necessary consent to the Development Application from the local Council, it was discovered the boat ramp is not on the respondent’s land, had never been approved, and access to it was through a koala corridor subject to a koala management plan. I find the boat ramp was an unlawful structure which did not comply with the Local Government Act and Regulations, and the respondent did not have the necessary approval to allow it to be used or accessed by vehicles. The respondent subsequently applied for approval to improve and re-open the boat ramp to vehicles, but this was denied.

23. At some unspecified date in April 2018 the respondent orally advised the applicants the restriction on vehicles accessing the ramp would not be lifted, effectively permanently prohibiting the applicants and all other home owners, from using it to launch their boats. The respondent confirmed this in writing, on or about 30 April (page 30 of the respondent’s documents). Pedestrian access to the ramp and surrounding areas is still permitted.

24. The applications were lodged on 16 and 18 April 2018. There being no time limit specified in the Act of Regulations for bringing an application for orders under section 157, section 40 of the Civil and Administrative Tribunal Act, and Regulation 23 of the Civil and Administrative Tribunal Rules require the applications to have been made within 28 days. As the claims for compensation arose when the respondent permanently restricted vehicular access to the ramp in April 2018, the applications are within time.

25. The evidence of each of the applicants that they would not have purchased their homes if they had known they would not be able to launch their boats at the boat ramp facility, or was an illegal structure, is accepted. It is consistent with their enthusiasm for fishing, and their ownership of boats and trailers, and entirely plausible. That evidence was not contradicted at the hearing, and it was not put to any of the applicants that if they had known the true position about the boat ramp, they would have proceeded with their respective purchases in any event.

The expert evidence

26. The expert opinion of Mr Northfield, is that the market value of each of the applicants’ homes, is 10% less than what it would be if the vehicular access to the boat ramp had not been removed. Mr Northfield estimated the current market value of the homes on the assumption the boat ramp was still available (i.e. just before it was closed), then calculates 10% of that amount as the loss in value because of the closure of the ramp. Two sales in the community before the closure of the ramp, and two sales after the closure are examined, and allowances made for differences between those homes and the applicants’, such as land size, location, strength of the market, and improvements. A current value of the relevant home on the assumption the ramp is still accessible is then established. Those values take into account “a broad overview of data from various sources”, which are set out in section 6.2 of the report.

27. The current market value given (on the assumption the ramp is still accessible) for the home of Spencer Sharpe and Valda Hanshaw is $240,000. The value of both the homes of Douglas and Carmel Birch and Linda and Barry Birch, is given as $250,000. The Tribunal accepts those values as accurate.

28. The opinion of Mr Northfield is that the sale price of each of the applicants’ homes has been devalued by 10%, on the basis the ramp was a selling point to a market principally comprised of “lifestyle retirees”. The opinion takes into account that the applicants only have leasehold tenure of the land on which their homes are situated, and acknowledges the difficulty of the exercise due to lack of data about the current value without the boat ramp, is such that a “value judgement” is required (part 6.4.2 of the reports). Mr Northfield’s opinion also takes into account there are very few other selling points for homes in this community, namely the swimming pool, the basic community hall, and the pleasant location near Evans Head. The Tribunal notes Mr Chadwick says in his report, that about 20% of the home owners in the community own boats. I infer from that evidence, that a significant number of people who purchased homes in the community, were attracted by the existence of the boat ramp.

29. Essentially Mr Chadwick’s opinion is, first, the Tribunal has no power under the Act to award compensation in the circumstances of these applications, and any redress the applicants may have is only available through a reduction in site fees under section 64 of the Act. That argument is considered below, and rejected. Secondly Mr Chadwick says that the ramp is of such poor quality, the removal of access to it, together with the existence of the boat ramp at Evans Head, makes no difference, or no measurable difference, to the value of the applicants’ homes.

30. Mr Chadwick is critical of the limited data Mr Northfield has considered in arriving at his conclusion, but offers no further data which could be considered, for example other communities which have boat ramps as community facilities. I find, on the evidence before me, Mr Northwood has taken account of all evidence reasonably available, before reaching his conclusion.

31. Mr Chadwick is also critical of Mr Northfield making a “value judgement” in arriving at the figure of 10% loss of value. I consider that term to mean no more than an opinion based on his experience and expertise (which like Mr Chadwick’s is considerable and set out in their CV’s), having considered the limited sales data and other information available.

32. Other criticisms of Mr Northfield’s methodology include that he has referred to heads of compensation defined in the Land Acquisition (Just Terms) Act 1991. However, I do not find these criticisms effect the validity of the report, which is clearly based on arriving at the value of the homes, before then after, the closure of the ramp.

33. Accordingly the Tribunal finds the demand for the applicants’ homes and the price able to be obtained for them, has declined as a result of the removal of access to the boat ramp. Whether there is sufficient evidence to award substantial, rather than nominal compensation, and if so the appropriate amount, is discussed below.

The law

34. Section 156 and 157 of the Act provide:

156 Applications to Tribunal relating to disputes

1. A home owner, former home owner or operator of a community may apply to the Tribunal for determination of any of the following:

1. a dispute relating to a right or obligation under this Act,

2. a dispute arising from, or relating to, a site agreement or collateral agreement,

3. any other matter that may be determined by the Tribunal under this Act.

2. An application to the Tribunal must be made within the period (if any) specified in this Act or prescribed by the regulations.

157 Orders that may be made by Tribunal

1. The Tribunal may, on application by a party to a dispute or other matter before the Tribunal, or in any proceedings under this Act, make one or more of the following orders:

1. an order that restrains an action in breach of this Act or a site agreement or collateral agreement,

2. an order that requires a person to comply with an obligation under this Act or a site agreement or collateral agreement,

3. an order that relieves a party to a site agreement or collateral agreement from the obligation to comply with a provision of the agreement,

4. an order for the payment of an amount of money,

5. an order for the payment of compensation,

6. an order that a party to a site agreement perform such work or take such other steps as the order specifies to remedy a breach of the agreement,

7. an order that requires payment of part or all of the site fees payable under a site agreement to the Tribunal until the whole or part of the agreement has been performed or any application for compensation has been determined,

8. an order that requires site fees paid to the Tribunal to be paid towards the cost of remedying a breach of the site agreement or towards the amount of any compensation,

9. an order directing an operator to give a former home owner or person authorised by a former home owner access to a residential site or home on the site for the purpose of recovering goods of the former home owner,

10. an order for anything else necessary or desirable to resolve a dispute.

2. An order under subsection (1) (a) or (b) may be made even though it provides a remedy in the nature of an injunction or order for specific performance in circumstances in which such a remedy would not otherwise be available.

3. The Tribunal must not make an order for:

1. the payment of an amount that exceeds the amount (if any) prescribed by the regulations for the purposes of this section, or

2. the performance of work or the taking of steps the cost of which is likely to or will exceed the amount (if any) prescribed by the regulations for the purposes of this section.

4. An order for the payment of compensation to a party is not to be made for loss or damage to the extent the loss or damage could have been avoided or limited by taking reasonable steps to mitigate the loss or damage.

5. A provision of this Act that enables a resident to apply for a determination by the Tribunal and the Tribunal to determine a matter or make an order also applies, where appropriate, to a former resident.

6. The Tribunal does not have jurisdiction to award compensation for damages arising from personal injury.

4. Except as provided by subsection (6), nothing in this section limits the orders that the Tribunal may make under this Act.

Note: This Act also confers other order-making powers on the Tribunal, including other specific powers to make termination orders and to declare that a residential site has been abandoned

35. Section 64 of the Act says;

64 Power of Tribunal to reduce site fees

1. The Tribunal may, on application by the home owner under a site agreement, make an order that the site fees payable under the agreement be reduced by an amount the Tribunal considers appropriate if it is satisfied:

1. the amenity or standard of the community's common areas has decreased substantially since the agreement was entered into, or

2. a communal facility or service provided at the community when the agreement was entered into has been withdrawn or substantially reduced, or

3. a communal facility or service as follows has not been provided at the community:

1. a communal facility or service described in advertising, done by or for the operator, of which the home owner was aware before the site agreement was entered into,

2. a communal facility or service described in a document made available to the home owner by the operator before the site agreement was entered into.

2. The Tribunal may consider any of the following documents for the purposes of subsection (1):

1. the site agreement,

2. a disclosure statement or other document containing information about the community and provided to the home owner by the operator,

3. any relevant advertising made available to the home owner by the operator before the site agreement was entered into,

4. any other document that the Tribunal considers is relevant.

Jurisdiction

36. In my view, section 64 does not restrict the powers of the Tribunal to order compensation to affected home owners under section 157, where, as here, a facility is permanently withdrawn from a community. Section 64 only deals with a reduction in site fees. Such reductions compensate home owners for the extra expense and inconvenience, and loss of amenity, caused by the withdrawal, and do not compensate home owners for the capital loss that may be incurred. There is nothing in the Act that modifies the literal meaning of section 157. All that needs to be found for section 157 (1) (e) to operate is that an application has been made for a determination about any of the matters in section 156 (1) (a) to (c). Here the applicants are in dispute with the respondent about what, if any, compensation they are entitled to following the permanent withdrawal of a community facility, the continued availability of which was represented to them in the disclosure statement. Furthermore, the applicants are in dispute over a collateral agreement, being the agreement the applicants would enter into their respective site agreements, if the respondent made available a boat ramp.

37. Support for the conclusion section 64 does not restrict section 157, can be found in the second reading speech of the Bill, in which the Honourable Mr Roberts, makes it clear one of the aims of the Bill is to expand upon consumer protection safeguards for home owners. The Bill also specifically intended to improve security of tenure for home owners, and if a community is closed, ensure they receive market value for their homes, as if the community was not to be closed.

38. The Tribunal finds it has jurisdiction to hear and determine the applications under sections 156 and 157 of the Act and sections 28 and 29 of the Civil and Administrative Tribunal Act 2013.

39. The Tribunal also has jurisdiction under section 79 J of the Fair Trading Act 1987 “(the FTA”), as the application falls within the definition of “consumer claim”. The applicants are consumers, and the respondent is a supplier, under section 79 D of the FTA (the services supplied being “the provision, or making available for use, of facilities for amusement, entertainment, recreation or instruction” as set out in section 79 F of the FTA). Section 28 of the FTA says the Australian Consumer Law (“the ACL”) is a law of New South Wales.

Collateral contract, implied term, and misleading and deceptive conduct

40. The representations, or promises, about the boat ramp that are set out in paragraph 17, were the consideration the applicants received in return for entering into the site agreements for the sites upon which their homes are situated.

41. They also constitute terms implied into the site agreements. In my view a reasonable person acquainted with the relevant circumstances set out above, would have understood the site agreements to contain those terms. They are reasonable and equitable, necessary to give business efficacy to the site agreements, so obvious they “go without saying”, clearly expressed, and they do not contradict any terms in the site agreements (see BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 282-283[1]).

    1. Cited in “Principles of Contract Law” Gooley, Radan and Vickovich, LexisNexis Butterworths 2014 3rd edition

42. The representations are also misleading or deceptive, and in breach of section 18 of the ACL. As such, the applicants, having relied on those representations, and suffered loss as a result, have an entitlement to damages under section 236 of the ACL.

43. All three causes of action arose, or crystallised, when the respondent advised the applicants of the true position, and the boat ramp closed, in April 2018, thereby breaching the collateral contract and the implied term, and revealing the misleading and false conduct.

Compensation

44. Damages are usually assessed in different ways for claims arising from breach of contract (expectation and reliance loss), than for claims arising from breach of section 18 of the ACL (analogous to, but not necessarily identical to tortious damages, or just reliance loss).

45. In contract the principle underlining the assessment, is that “Where a party sustains loss by breach of contract, he is, so far as money can do it, to be placed in the same position, with respect to damages, as if the contract had been performed” (Robinson and Harman (1848) 154 ER 363 at 365, and Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272 at 286[2]. The time for assessment is the date of the breach, or the date of trial. In this case either date for the assessment produces the same result.

    2. Supra at p 582

46. However in assessing damages for breach of section 18 of the ACL, as there is no contract, there is no loss based on an expectation it will be fulfilled. Rather the applicants are to be compensated for the difference between what was paid, and the true value of what was purchased.

47. The difference in the methods of assessment leads to a slightly lower amount under section 236 ACL, than in contract.

48. The expert evidence about the loss of re-sale value of the applicants’ homes has been analysed above. While it is a difficult exercise to determine the appropriate amount, that is not a reason to decline to do so. As Brooking J said in JLW (Vic) Pty Ltd v Tsilogou [1994] 1 VR 237 at 241[3] “ A plaintiff cannot recover substantial as opposed to nominal damages unless he proves both the fact and the amount of damage. If he proves the fact of the loss but does not call the necessary evidence as to its amount he cannot be awarded substantial damages: he must put the tribunal in the position of being able to quantify in money the damage he has suffered….[T]he plaintiff must prove what he has suffered and will suffer and what is fair and reasonable compensation in respect of that. It is often said the amount of the damage must be proved with certainty, but this only means as much “certainty” as is reasonable in the circumstances. Where precise evidence is obtainable, the court naturally expects to have it; where it is not, the court must do the best it can”.

    3. Supra at page 580

49. The reports of the parties’ respective experts about the loss of value of the applicants’ homes is discussed above. There is no evidence about what obtainable evidence should have been put to the Tribunal but was not, and I have concluded all available evidence has been put before the Tribunal.

50. The role of expert evidence is to assist the Tribunal by providing impartial evidence in the experts’ field of expertise. It remains the Tribunal’s function to reach its own conclusion as to the amount of damages that should be awarded, and it is not a matter of simply preferring one expert’s evidence over the other, and adopting that expert’s conclusion.

51. Having considered all of the evidence about the loss of value of the applicants’ homes, it is my conclusion the applicants’ expert opinion does not give sufficient weight to the fact there is a superior, all weather boat ramp available to the public nearby at Evans Head, which does not have its access limited to four wheel drive vehicles in bad weather. It is also my conclusion that the respondent’s expert opinion does not give enough weight, if any, to the fact the boat ramp was a major selling point to a significant segment of the “lifestyle retiree” market. A major selling point increases demand, which in turn increases the price.

52. The applicants must prove their loss, and I am comfortable in concluding they have proved a loss of 5% of the value of their homes as at April 2018, as a result of the respondent’s breach of contract. That equates to amounts of $12,500 for Linda and Barry Birch, $12,500 for Douglas and Carmal Birch, and $12,000 for Spencer Sharpe and Valda Hanshaw.

53. In case I am wrong about their being a breach of contract, damages under section 236 ACL, are assessed at 5% of the purchase price of the applicants’ homes. This results in awards of $11,350 for Barry and Linda Birch, and Spencer Sharpe and Valda Hanshaw, and $11,550 for Douglas and Carmal Birch.

54. Barry and Linda Birch also claimed a loss of $2,500, and Carmal and Douglas Birch $900, for the cost of having to tow their boat to Evans Head, and register their trailer, since the boat ramp closed. As stated above, in my view, such recurrent costs, and any loss of amenity, should be compensated by way of a reduction in site fees under section 64 of the Act.

55. Furthermore, in RC 17/40865 Barry and Linda Birch applied under section 64 for a reduction in site fees because of the closure of the ramp. On 5 December 2017, an order for a reduction in site fees of $7.50 until the ramp was re-opened was made by the Tribunal (at that time the ramp had not been permanently closed). The amount of $7.50 was derived by taking into account the additional costs of transport to the Evans Head boat ramp and the loss of amenity. The amount awarded was much less than the actual costs incurred, because of the relatively low level of site fees which were to be reduced. The claim for these costs is therefore rejected, as is the similar claim by Douglas and Carmal Birch. It is open to Douglas and Carmal Birch, and Spencer Sharpe and Valda Hanshaw, to make application under section 64, if they wish, although they will need to seek an extension of time in which to do so.

Costs

56. The applicants also claimed the cost of Mr Northfield’s report, which was $2,200 for each of them. Section 60 of the Civil and Administrative Tribunal Act says each party is to pay the party’s own costs, unless there are special circumstances warranting an award of costs. In considering whether there are special circumstances, the Tribunal may have regard to the nature and complexity of the proceedings, and any other matter the Tribunal considers relevant. The assessment of the amount of compensation to be awarded is complex, and could not have been undertaken without Mr Northfield’s report. Accordingly each applicant should be awarded $2,200 in costs.

57. Accordingly there should be orders the respondent pay Douglas and Carmal Birch $12,500 plus costs of $2,200, Barry and Linda Birch $12,500 plus costs of $2,200, and Spencer Sharpe and Valda Hanshaw $12,000 plus costs of $2,200.

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Endnotes

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

Decision last updated: 18 March 2019