Moloney v Styles

[2016] NSWCATCD 35

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Moloney v Styles [2016] NSWCATCD 35

Hearing dates:

18 February 2016

Decision date:

13 April 2016

Jurisdiction:

Consumer and Commercial Division

Before:

K Ross, General Member

Decision:

1.  Pursuant to s 32 of the Holiday Parks (Long Term Casual Occupation) Act 2002 the Tribunal declares that sites 13 and 47 were abandoned by the respondent on 31 March 2015.

2.  The Tribunal finds that the goods, including the moveable dwellings on sites 13 and 47 are abandoned goods.

3.  The applicant is authorised to remove, destroy, sell or otherwise dispose of the abandoned goods in accordance with Regulation 8 of the Holiday Parks (Long Term Casual Occupation) Regulation 2003.

4.  Ian Desmond Styles is to pay Charles James Moloney the sum of $45,425.60 immediately.

Reasons: cost of removal of abandoned goods from sites 13 and 47 as per quotations of Rallin Excavations & Demolition dated 30 May 2015.

5.  Ian Desmond Styles is to pay Charles James Moloney the sum of $4,504.34 immediately.

Reasons:
Site fees for site 13 from 16 February 2015 to 28 April 2015 $615.45
Site fees for site 13 from 25 August 2015 to 3 March 2015 $1,636.72
Site fees for site 47 from 16 February 2015 to 28 April 2015 $615.45
Site fees for site 47 from 25 August 2015 to 3 March 2015 $1,636.72

6.  The respondent is to pay the applicant’s costs of proceedings GEN 14/10514, GEN 14/28724, RP 14/40194 and GEN 14/40199 on a party party basis, as agreed or assessed.

7.  The application for costs of proceedings GEN 15/49165, RP 14/42993 and GEN 14/42997 is dismissed.

Catchwords:

Abandoned goods, costs

Legislation Cited:

Holiday Parks (Long Term Casual Occupation) Act 2002
Civil and Administrative Tribunal Act 2013

Cases Cited:

Jackson v NSW Land and Housing Corporation [2014] NSW CATAP 22

Category:

Principal judgment

Parties:

Charles James Moloney (applicant)
Ian Desmond Styles (respondent)

Representation:

Mr Rodney Kent, Solicitor, for applicant
No appearance by respondent

File Number(s):

GEN 15/49165

Publication restriction:

Unrestricted

reasons for decisioN

Background

1. In proceedings determined in February 2015 between these parties the Tribunal found that the agreements between the parties in respect of both site 13 and site 47 were governed by the Holiday Parks (Long Term Casual Occupation) Act 2002. On 2 February 2015 the Tribunal made orders terminating the agreements and requiring that possession of the sites be given to the Park Owner on 31 March 2015. The applicant alleges that the respondent has failed to comply with those orders. The respondent did not attend the hearing, but in a submission sought to re-agitate the issues determined in the previous proceedings.

Application

2. The applicant seeks the following orders:

1. An order under s 32 of the Act that the sites were abandoned by the respondent.

2. An order under s 34 (2)(a) of the Act authorising the removal, destruction or disposal of all goods left by the respondent on sites 13 & 47.

3. An order under s 34 (2)(b) of the Act that the respondent pay the applicant’s costs of and incidental to the removal, destruction or disposal of all goods left by the respondent upon sites 13 & 47.

4. An order for the respondent to pay the ongoing site fees up to and including the date of removal, destruction or disposal of the goods left by the respondent on sites 13 & 47.

5. An order that the respondents pay the applicant’s costs of these proceedings, and of the previous proceedings.

3. The respondent did not appear at the hearing. The Tribunal was satisfied that a notice of hearing addressed to the respondent appeared on the Tribunal’s file. There was no evidence that the notice had been returned to the Tribunal. In these circumstances the Tribunal was satisfied that the notice of hearing had been served on the respondent and determined that it was in the interest of justice that the hearing proceed in the absence of an appearance by the respondent.

4. The Tribunal heard the evidence and reserved its decision.

Applicant’s evidence and submissions

5. The applicant relied upon his own evidence and a bundle of documents filed with the Tribunal. The applicant gave evidence that despite orders made by the Tribunal on 2 February 2015, terminating the site agreement and requiring possession of the sites on 31 March 2015, vacant possession had not been given. The vans, annexes and various goods remain on the sites. It is apparent that the respondent has abandoned the sites. He has not returned to remove the goods. The applicant seeks orders to enable him to remove the goods at the respondent’s cost ($19,412.80 to remove the goods from site 13 and $26,012.80 to remove the goods from site 47).

6. In addition the applicant seeks orders for payment of site fees, and for late fees.

7. The applicant seeks to have the time for bringing the application under s 34 extended, and concedes that no order should be made for site fees for the period of the delay.

8. The applicant also seeks the costs of these proceedings, and of previous proceedings between the parties. Whilst it would normally be the case that the costs applications would be made in the files for those proceedings, the Tribunal determined that there was no prejudice to either party if the costs applications were considered without relisting the previous applications.

Respondent’s evidence and submissions

9. The respondent did not appear at the hearing. He provided a submission in which he restated his arguments run in the previous proceedings, and stated that he sought a refund of the purchase price of both vans on the basis that he had been deceived into believing that the Park was registered for permanent occupation.

Findings and Decision

10. In respect of each of the orders sought

1. An order under s 32 of the Act that the sites 13 and 47 were abandoned by the respondent.

11. The Tribunal accepts the applicant’s uncontested evidence that the sites were abandoned by the respondent on 31 March 2015, being the date on which vacant possession was ordered to be given to the applicant. There is no evidence that the respondent has returned to either of the sites after that date. The respondent did not deliver vacant possession, because he did not remove the vans or annexes, or other goods, which remain on the sites. The Tribunal finds that the respondent abandoned the sites on 31 March 2015.

Time for bringing application

12. Section 36 of the Act provides that an application under s 34 or 35 may not be made more than 28 days after the date on which the park owner gains possession of the site, whether as a result of the occupant delivering up vacant possession of the site to the park owner, the occupant abandoning the site or the park owner recovering possession of the site. As the Tribunal has found that the sites were abandoned on 31 March 2015, the application ought to have been filed no later than 28 April 2015. It was not filed until 25 August 2015.

13. Section 41 of the Civil and Administrative Tribunal Act 2013 provides as follows:

41 Extensions of time

(1) The Tribunal may, of its own motion or on application by any 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.

(2) Such an application may be made even though the relevant period of time has expired.

14. The matters which should be considered in determining whether to extend time were considered by the appeal panel in Jackson v NSW Land and Housing Corporation [2014] NSW CATAP 22 at [22]. In relation to the consideration of whether to grant an extension of time in which to bring an appeal, the appeal panel; said:

(1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant — Gallo v Dawson [1990] HCA 30 at 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38];

(2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a “vested right“ to retain the benefit of that decision — Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success — Jackamarra at [7];

(3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider:

(a) The length of the delay;

(b) The reason for the delay;

(c) The appellant’s prospects of success, that is usually whether the applicant has a fairly arguable case; and

(d) The extent of any prejudice suffered by the respondent (to the appeal),

— Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and

(4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable — Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58]–[59].

15. The consideration in paragraph 2 is not relevant in this matter, but the other considerations do apply. The applicant’s reason for not bringing the proceedings in time was that, in his view, because vacant possession had not been obtained, time had not begun to run. This argument revealed a misunderstanding as to the process which ought to have been adopted to obtain possession of the site.

16. To deny an extension of time would be to prevent the applicant from obtaining the orders to remove the abandoned goods, and to obtain an order for the cost of doing so. On the other hand, the prejudice to the respondent can be cured by preventing the applicant from recovering the site fees for the period of the delay. Accordingly the Tribunal is satisfied that it is appropriate to extend the time for the bringing of the application, but to deny the applicant an order for the site fees between 29 April 2015 and 25 August 2015, being the period of the delay in bringing these proceedings.

1. An order under s 34 (2)(a) of the Act authorising the removal, destruction or disposal of all goods left by the respondent on sites 13 and 47

17. The Tribunal is satisfied that the respondent, having abandoned the sites, has left on them items including the van, annex, concrete slabs, and other goods. The Tribunal finds that the goods are abandoned goods and that it is appropriate to make the order sought.

1. An order under s 34 (2)(b) of the Act that the respondent pay the applicant’s costs of and incidental to the removal, destruction or disposal of all goods left by the respondent upon sites 13 and 47.

18. The applicant seeks the sum of $19,412.80 as the cost of removing the van, annex and other goods from site 13 and $26,012.80 for the cost of removing the goods on site 47. He provides quotes from Rallin Excavations & Demolition dated 30 May 2015. The respondent has provided no alternative quotes. He gives no explanation for failing to do so. The Tribunal is satisfied that the respondent could have obtained a quote in the period between termination of the agreement and the date for possession. Accordingly, in the absence of any evidence to the contrary, the Tribunal allows the amount claimed.

1. An order for the respondent to pay the ongoing site fees up to and including the date of removal, destruction or disposal of the goods left by the respondent on sites 13 and 47.

19. The applicant seeks an order for payment of site fees for site 13 from 16 February 2015 to date and continuing at the rate of $260.00 per month, and for site 47 from 16 February 2015 to date and continuing at $260.00 per month. At the hearing the applicant conceded that, as the application had not been brought in time, no order should be made for the period of the delay. In addition the applicant seeks for the site fees to be payable to the date of the order but does not wish to have a renewal for the quantification of future site fees. The Tribunal will allow the fees from 16 February 2015 to 28 April 2015, and from 25 August 2015 to date.

20. The applicant claims the sum of $20.00 per week as late fees, pursuant to the park rules. The Tribunal is satisfied that late fees are prohibited by s 21 of the Act. They are a charge by way of a penalty for continuation of the agreement. They are not agreed to “under the occupation agreement.” The Tribunal declines to make the order sought in respect of the late fees.

1. Costs

21. The applicant submits that the respondent should pay his costs of both these proceedings, and the former proceedings. The regime in respect of costs is set out in the Civil and Administrative Tribunal Act 2013 (“the NCAT Act”) in s 60:

Costs

(1) Each party to proceedings in the Tribunal is to pay the party’s own costs.

(2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.

(3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following:

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d) the nature and complexity of the proceedings,

(e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,

(f) whether a party has refused or failed to comply with the duty imposed by section 36 (3),

(g) any other matter that the Tribunal considers relevant.

(4) If costs are to be awarded by the Tribunal, the Tribunal may:

(a) determine by whom and to what extent costs are to be paid, and

(b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014 ) or on any other basis.

(5) In this section:

"costs" includes:

(a) the costs of, or incidental to, proceedings in the Tribunal, and

(b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.

22. The Tribunal must accordingly be satisfied that there are special circumstances in order to make an order for costs. The applicant submits that special circumstances can be found based upon the respondent’s untruthful evidence. The respondent obtained an order exparte from the Tribunal in June 2013. In those proceedings he stated that he did not own site 13, and he occupied site 47 as his principal place of residence. In the 2015 proceedings he initially produced a receipt for the purchase of the van by his partner, to support his claim that he did not own site 13. Eventually he conceded that he did own the van on site 13, and that he had obtained the receipt for the purpose of supporting his case that he did not. In respect of his occupation of site 47, he swore an affidavit in respect of a conversation which he said had confirmed his occupation as his principal place of residence but eventually conceded that these words were not used, and instead he had said that he wanted a base from which he would come and go. In the 2015 proceedings, the subject of this cost application, the Tribunal made adverse findings of credit against the respondent. The applicant argues that but for the respondent’s lies, the proceedings would not have been required. The applicant submits that these matters amount to special circumstances, entitling the applicant to an indemnity costs order.

23. The Tribunal is not satisfied that the proceedings would not have been required at all, but is satisfied that the respondent’s prosecution of his applications, and defence of the applicant’s applications, was extended as a result of the respondent’s lack of candour.

24. On the other hand, the Tribunal must take into account that the solicitor for the applicant is the park manager. Without the involvement of the solicitor for the applicant as its manager, it is by no means certain that legal representation would have been granted.

25. Weighing up these competing interests, the Tribunal is satisfied that it is appropriate to make a costs order that the respondent pay 1/2 of the applicant’s costs on a party party basis in respect of the proceedings GEN 14/10514, GEN 14/28724, RP 14/40194 and GEN 14/40199. No order is made in respect of the proceedings RP 14/42993 and GEN 14/42997 based on breach, as neither party was entirely successful in respect of those claims. In these applications, whilst the breach was found, the Tribunal determined that termination was not appropriate. Each party should pay his own costs of these proceedings.

26. The Tribunal is also satisfied that each party should pay his own costs of the current proceedings GEN 15/49165. The Tribunal is not satisfied that there are special circumstances warranting a cost order in this matter.

Orders

1. Pursuant to s 32 of the Holiday Parks (Long Term Casual Occupation) Act 2002 the Tribunal declares that sites 13 and 47 were abandoned by the respondent on 31 March 2015.

2. The Tribunal finds that the goods, including the moveable dwellings on sites 13 and 47 are abandoned goods.

3. The applicant is authorised to remove, destroy, sell or otherwise dispose of the abandoned goods in accordance with Regulation 8 of the Holiday Parks (Long Term Casual Occupation) Regulation 2003.

4. Ian Desmond Styles is to pay Charles James Moloney the sum of $45,425.60 immediately.

1. Reasons: cost of removal of abandoned goods from sites 13 and 47 as per quotations of Rallin Excavations & Demolition dated 30 May 2015.

5. Ian Desmond Styles is to pay Charles James Moloney the sum of $4,504.34 immediately.

1. Reasons:

2. Site fees for site 13 from 16 February 2015 to 28 April 2015 $615.45

3. Site fees for site 13 from 25 August 2015 to 3 March 2015 $1,636.72

4. Site fees for site 47 from 16 February 2015 to 28 April 2015 $615.45

5. Site fees for site 47 from 25 August 2015 to 3 March 2015 $1,636.72

6. The respondent is to pay the applicant’s costs of proceedings GEN 14/10514, GEN 14/28724, RP 14/40194 and GEN 14/40199 on a party party basis, as agreed or assessed.

7. The application for costs of proceedings GEN 15/49165, RP 14/42993 and GEN 14/42997 is dismissed.

K Ross

General Member

Civil and Administrative Tribunal of New South Wales

13 April 2016

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: 23 June 2016