Rowe v Kincumber Nautical Village Pty Ltd (No.3)

[2022] NSWSC 1701

Supreme Court

New South Wales

Medium Neutral Citation:

Rowe v Kincumber Nautical Village Pty Ltd (No.3) [2022] NSWSC 1701

Hearing dates:

On the papers

Date of orders:

15 December 2022

Decision date:

15 December 2022

Jurisdiction:

Common Law

Before:

Garling J

Decision:

See [17]

Catchwords:

CIVIL PROCEDURE — Representative proceedings — Proceedings commenced by plaintiff with statutory right of appeal from a decision of the Appeal Panel of the NSW Civil and Administrative Tribunal — No other group member exercised statutory right — Orders made dismissing the plaintiff’s appeal — Parties agreed that consequential orders should be made binding the group members — Orders made under ss 177 and 179 of the Civil Procedure Act 2005 (NSW)

LEASES AND TENANCIES — Legislation protecting tenants — Residential (Land Lease) Communities Act 2013 (NSW)

Legislation Cited:

Civil Procedure Act 2005 Pt 10

Residential (Land Lease) Communities Act 2013 ss 65, 66

Cases Cited:

Rowe v Kincumber Nautical Village Pty Ltd [2022] NSWSC 533

Rowe v Kincumber Nautical Village Pty Ltd [2022] NSWSC 1378

Texts Cited:

Not applicable

Category:

Consequential orders

Parties:

Daryl John Rowe (P)
Kincumber Nautical Village Pty Ltd (D)

Representation:

Counsel:
P Batley (P)
D Hochroth (D)

Solicitors:
Tenants Union of NSW (P)
Corrs Chambers Westgarth (D)

File Number(s):

2021/293591

Publication restriction:

Not applicable

Judgment

1. The plaintiff, Darryl Rowe, commenced proceedings this Court by way of a Summons filed on 12 October 2021 seeking leave to appeal, and to appeal, against a decision of the Appeal Panel of the NSW Civil and Administrative Tribunal (“NCAT”).

2. In so doing, he sought that his appeal be treated as a representative proceeding brought pursuant to the provisions of Pt 10 of the Civil Procedure Act 2005.

3. The appropriateness of such a procedure was considered by Rothman J, and for the reasons which he enunciated, was permitted: Rowe v Kincumber Nautical Village Pty Ltd [2022] NSWSC 533.

4. On 27 October 2022, having heard final argument, for the reasons which I then articulated, I found unfavourably to the plaintiff: Rowe v Kincumber Nautical Village Pty Ltd [2022] NSWSC 1378 (“the principal judgment”).

5. With respect to the claim of the plaintiff, I made the following orders:

1. Grant leave to appeal from the decision of the Appeal Panel of the NSW Civil and Administrative Tribunal in matter number 2020/371060;

2. Dismiss the appeal of the plaintiff;

3. Order the plaintiff to pay the defendant’s costs.

6. The parties were directed to provide short minutes of order with respect to the orders which they contended were appropriate to be made dealing with the Group Members other than the plaintiff.

7. This judgment deals with the competing sets of short minutes of order provided by each party.

8. The parties are agreed that the orders which were made dismissing the claim of the plaintiff ought bind each of the Group Members. The parties differ as to what orders are necessary to ensure this occurs.

9. The differences between them arise largely because of the fact that the plaintiff was exercising a statutory right to appeal which only he had. Some Group Members also had a statutory right to appeal but they did not exercise it in each proceeding which they had brought before NCAT - rather, they chose to be Group Members. Of course, they are now out of time to bring a statutory appeal and would need to have time extended to enable them so to do.

10. On the one hand, it is argued that because they are bound to accept that the claim in which they were Group Members has been dismissed, they could not now bring their own statutory appeal. As well, it is suggested that it would be highly unlikely that the Court would grant leave to bring such statutory appeal out of time.

11. On the other hand, the defendant argues that a simple order for dismissal of the plaintiff’s claim would not create any estoppel in favour of the defendant with respect to any findings of contested fact and conclusions which were steps on the way to the dismissal of the plaintiff’s claim.

12. Accordingly, the defendant seeks a determination pursuant to s 177(1) of the Civil Procedure Act in the following three respects:

1. that the NCAT Appeal Panel did not err in law in its constructions of s 65 and 66 of the Residential (Land Lease) Communities Act 2013;

2. that the site fee increase term and each of the site agreements between the defendant and the Group Members (“the Site Agreements”) is a “fixed calculation” within the meaning of s 65 of the Residential (Land Lease) Communities Act; and

3. that the Site Agreements provide only one fixed method in compliance with s 66(2) of the Residential (Land Lease) Communities Act.

13. The defendants draw attention to the powers of the Court provided by s 177 of the Civil Procedure Act to determine a question of law or a question of fact when determining a matter in representative proceedings. Accordingly, the defendant submits that the Court has the power to make the orders sought, that it is appropriate so to do in order to avoid any future uncertainty or else to leave room for argument as to what the judgment in fact found or determined.

14. I note that the context for these Site Agreements, as set out in the principal judgment, was that they continue for many years and that there is a provision for an annual adjustment of costs and expenses according to the clause which was the subject of these proceedings.

15. In those circumstances, it seems to me that clarity is essential to avoid further disputes.

16. Accordingly, I propose to accede to the orders sought by the defendant.

ORDERS

17. I make the following orders:

1. Pursuant to section 177(1) of the Civil Procedure Act 2005 (NSW) (“CPA”), the Court declares that:

1. the NSW Civil & Administrative Tribunal (“NCAT”) Appeal Panel did not err in law in its construction of sections 65 and 66 of the Residential (Land Lease) Communities Act 2013 (“RLLC Act”);

2. the site fee increase term in each of the site agreements between the defendant and the group members respectively (“the Site Agreements”) is a “fixed calculation” within the meaning of section 65 of the RLLC Act; and

3. the Site Agreements provide for only “one fixed method” in compliance with section 66(2) of the RLLC Act.

2. Pursuant to section 179 of the CPA, this judgment binds each of the group members who, together with the plaintiff, were:

1. applicants in NCAT proceedings against the defendant in the matter entitled, “Morris & Ors v Kincumber Nautical Village”, determined by Senior Member K Ross on 3 September 2020 (First Instance Decision);

2. named in Schedule 1 to the First Instance Decision; and

3. respondents to the defendant’s appeal from the First Instance Decision to the NCAT Appeal Panel in proceedings number 2020/00371060 determined on 14 September 2021.

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Decision last updated: 15 December 2022