South Canberra Holdings Pty Ltd v Saunders
[2024] ACTSC 212
•4 July 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | South Canberra Holdings Pty Ltd v Saunders |
Citation: | [2024] ACTSC 212 |
Hearing Date: | 31 May 2024, 7 June 2024 |
Decision Date: | 4 July 2024 |
Before: | Baker J |
Decision: | (1) The applicant is refused leave to appeal against the order of the ACT Civil and Administrative Tribunal made on 17 November 2023. |
Catchwords: | APPEAL – parties filed consent orders that leave to appeal against the ACAT decision be granted and that the ACAT decision be set aside – substantive dispute settled – proceedings moot – leave to appeal refused. |
Legislation Cited: | ACT Civil and Administrative Tribunal Act 2008 (ACT), s 86 |
Cases Cited: | Nursing and Midwifery Board of Australia v HSK [2019] QCA 144; 1 QR 600 People with Disability Australia Incorporated v Minister for Disability Services & Anor [2011] NSWCA 253 Saunders v South Canberra Holdings Pty Ltd ACN 606 747 602 (Appeal) [2023] ACAT 71 |
Parties: | South Canberra Holdings Pty Ltd ( Applicant) Kaye Saunders ( Respondent) |
Representation: | Counsel T Barrington-Smith ( Applicant) R Long ( Respondent) |
| Solicitors Lexmerca Lawyers ( Applicant) Clayton Utz ( Respondent) | |
File Number: | SCA 6 of 2024 |
Decision Under Appeal: | Court/Tribunal: ACT Civil and Administrative Tribunal Before: Temporary Presidential Member Spender Date of Decision: 17 November 2023 Case Title: Saunders v South Canberra Holdings P Pty Ltd ACN 606 747 602 (Appeal) Citation: [2023] ACAT 71 |
BAKER J:
Introduction
1․The applicant, South Canberra Holdings Pty Ltd (South Canberra Holdings), is the Crown lessee and operator of long-stay residential and holiday parks, including the South Canberra Motor Park in Fyshwick Canberra (Southside Village).
2․The respondent, Ms Saunders, was a long-term resident of the South Canberra Motor Park in Fyshwick. In 2003, Ms Saunders purchased a pre-existing structure on site 195 (the site). From 2003 until about 2018, Ms Saunders resided on the site, more recently, pursuant to a “licence to occupy” agreement renewed on or about 25 January 2013.
3․On 22 September 2020, South Canberra Holdings served a Notice of Termination of Occupation Agreement on Ms Saunders seeking vacant possession of the site by 31 March 2021, which she did not give. Proceedings were then brought by South Canberra Holdings in the ACT Civil and Administrative Tribunal (ACAT), seeking an order for termination of the occupation agreement and vacant possession. A number of applications in this matter were subsequently heard by the ACAT. Ms Saunders appealed to the Appeal Tribunal of the ACAT against two of those rulings.
4․On 17 November 2023, the Appeal Tribunal delivered its decision on that appeal: Saunders v South Canberra Holdings Pty Ltd ACN 606 747 602 (Appeal) [2023] ACAT 71. Relevantly to the present application, the Tribunal held that the structure on the site was a fixture. As the structure was a fixture, South Canberra Holdings was found to own the structure, and to be responsible for its removal. Accordingly, the ACAT held that “the obligation of [Ms Saunders] to give vacant possession by 18 December 2023 does not require her to remove the structure, or to pay for or otherwise facilitate the removal of the structure”.
5․By way of an application filed 5 February 2024, South Canberra Holdings sought leave to appeal against the ACAT’s determination that the structure erected on the site was a fixture. The Notice of Appeal alleged that the Tribunal made six errors in the Appeal Decision. Three of those errors related to the contention that the Tribunal incorrectly determined the structure in question was sufficiently affixed to the land. These alleged errors raised questions of both fact and law.
6․On 9 May 2024, the parties filed consent orders that leave to appeal against the ACAT decision be granted and that the ACAT decision be set aside. The proceedings came before me as duty judge in the week of 27 May 2024. I declined to make the consent order in chambers, and listed the matter for hearing on 31 May 2024.
7․At hearing of the application on 31 May 2024, I informed the parties that the ACAT decision could not be set aside unless the Court was satisfied that the decision was infected by error. At that time, counsel for Ms Saunders informed me that the parties had settled the substantive dispute. He indicated that, in substance, Ms Saunders’ position was one of a submitting appearance, and that she did not seek to be heard further on the appeal, other than as to costs.
8․On the application of South Canberra Holdings, I then adjourned the proceedings to 7 June 2024. Counsel for the appellant subsequently filed written submissions which briefly addressed some of the alleged errors in the ACAT decision, and the issue of whether leave to appeal should be granted in circumstances where the appeal had become moot by reason of the settlement of the underlying dispute between the parties. Counsel for Ms Saunders made further oral submissions on the mootness issue at the hearing on 7 June 2024.
9․After hearing these submissions, I refused the applicant leave to appeal against the ACAT’s decision on the ground that the proceedings were moot. My reasons for doing so are as follows.
Determination
10․Section 86 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (“the ACAT Act”) provides that a party to an application may appeal to the Supreme Court against a decision of the Appeal Tribunal on a question of fact and law. Such an appeal may only be brought with the Court’s leave: s 86(4) of the ACAT Act.
11․The issues in the present appeal, including both the questions of fact and of law, appear to have been of a character that would have justified the grant of leave. However, the underlying dispute between the parties in the present dispute has now been resolved. The question that arose is whether leave to appeal should be granted in those circumstances.
12․As to this issue, South Canberra Holdings noted that there are numerous structures in residential parks in the ACT which have a similar level of affixation to the present case. South Canberra Holdings submitted that:
If the same level of affixation were applied to similar properties in the ACT then all long -stay park owners would have involuntarily acquired a number of structures along with the liabilities that would ensue from providing housing that is not up to the relevant standard for Residential Tenancies in the ACT.
The liability would presumably include the demolition costs or the costs of bringing those structures up to standard as well as historical liabilities to refund any amounts paid and penalties for providing housing below the required standard…
Similarly, the owners of these structures would also be prejudiced with some owners paying hundreds of thousands of dollars for semi-detached homes in holiday parks that are significantly more affixed than the Structure was.
13․In view of the importance of the issue in other cases, South Canberra Holdings submitted that, “despite the resolution of the underlying dispute, it is still preferable to have the decision formally set aside by the grant of leave and granting of the appeal”.
14․A similar issue arose before the New South Wales Court of Appeal in People with Disability Australia Incorporated v Minister for Disability Services & Anor [2011] NSWCA 253. That appeal was against a decision of the NSW Administrative Decisions Tribunal concerning the operation of certain institutional accommodation for disabled persons. All of the centres that were the subject of the appeal were closed after the Notice of Appeal was filed, but before the hearing of the appeal.
15․The appellant in this matter (People with Disability Australia Incorporated) contended that “there was utility in the appeal because there were other proceedings on foot in the Tribunal which raised the same question [as was raised in the appeal]”. The appellant further submitted that that issue had been wrongly decided by the Appeal Panel and unless the Panel corrected the Tribunal, this would effectively determine the result, at least at Tribunal level, of the other proceedings.
16․In determining to proceed to judgment, Beazley JA (as her Excellency then was, and with whom Allsop P and Handley JA agreed) held as follows (at [12]-15]):
The Court does not have an advisory jurisdiction. At the time this appeal was filed, there was a real dispute between the parties, namely, whether the Appeal Panel had erred in holding that there was no reviewable decision of the Minister in respect of the two centres subject of the application. As the centres have been closed, there is now no relevant controversy between the parties in respect of which a decision of this Court would have any effect. In short, in respect of these two centres, the appeal is moot and of no utility.
As a general rule, the Court, in such circumstances, would not entertain the appeal. However, the rule is a general one only and the Court retains a discretion to hear and determine an appeal which has been regularly commenced but where a change of circumstances means that any decision will be moot so far as the particular controversy between the parties is concerned.
One of the factors which would cause the Court to exercise its discretion and determine the matter is where the decision subject of the appeal is likely to affect other cases: see Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334; Long v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 438; Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54; Hope Downs Management Services v Hamersley Iron Pty Ltd [1999] FCA 1652; Bonan v Hadgkiss [2007] FCAFC 113.
As the appeal had been argued almost to its conclusion when the Court ascertained that there was no dispute between the parties in respect of the Lachlan and Peat Island Centres, I have concluded that the Court ought to determine the issue raised on the appeal, involving as it does the proper consideration of s 6(1)(g), as there is at least one other proceeding on foot where that question will be pivotal to the determination of the proceeding. Had the position between the parties in this case been known to the Court when the matter first became moot, a different position may have been taken.
See similarly Nursing and Midwifery Board of Australia v HSK [2019] QCA 144; 1 QR 600 at [18] – [23].
17․The present appeal is in a very different position to People with Disability Australia Incorporated. Unlike the appeal in People with Disability Australia Incorporated, the mootness of the present appeal has come to the Court’s attention prior to the grant of leave. Importantly, as a result of the settlement, Ms Saunders has indicated that she will no longer play an active role in the proceedings. As a result, the Court does not have the benefit of any contradictor to the questions of principle which South Canberra Holdings contends would need to be determined by this Court. In contrast, in People with Disability Australia Incorporated, the New South Wales Court of Appeal had the benefit of detailed written and oral submissions from both parties.
18․In considering whether leave to appeal should be granted, it is also necessary to bear in mind that a decision of the Appeal Tribunal of the ACAT is not binding in other proceedings before the ACAT, and that any determination of whether the level of affixation in a particular case is sufficient to cause a given structure to be characterised as a “fixture” at law will be largely a question of fact, to be determined by the particular evidence in that case.
19․I raised these concerns with South Canberra Holdings’ legal representative at the hearing on 7 June 2024. In that hearing, I also foreshadowed that if the Court were to consider entertaining South Canberra Holdings’ appeal, it may be necessary for an amicus curiae to be appointed as contradictor, so that the Court would have the benefit of considered submissions opposing the submissions of South Canberra Holdings. South Canberra Holdings’ legal representative expressed concern about the cost of such a contested hearing, and ultimately did not oppose the making of an order refusing leave to appeal.
Orders
20․For the above reasons, I made the following orders:
(1)The applicant is refused leave to appeal against the order of the ACT Civil and Administrative Tribunal made on 17 November 2023.
| I certify that the preceding twenty [20] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker Associate: A Watson Date: 4 July 2024 |
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