Warfield v Galt Investments Pty Ltd t/as Lifestyle Village Anna Bay

[2023] NSWCATEN 4

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Warfield v Galt Investments Pty Ltd t/as Lifestyle Village Anna Bay [2023] NSWCATEN 4

Hearing dates:

On the papers

Date of orders:

15 May 2023

Decision date:

15 May 2023

Jurisdiction:

Enforcement

Before:

Coleman SC ADCJ

Decision:

(1) Pursuant to the provisions of s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW), the Tribunal dispenses with a hearing of the proceedings.

(2) The Application of 13 October 2022 for referral of the Respondent to the Supreme Court to be dealt with for contempt of the orders of the Tribunal of 12 February 2021 and/or 23 February 2021 is dismissed.

(3) Any party seeking an order for costs of the proceedings file and serve written submissions not exceeding 5 pages in length in support of such application within 21 days of these orders.

(4) A party opposing an application for costs file and serve written submissions not exceeding 5 pages in length in opposition to such application within 42 days of these orders.

(5) A party opposing an order dispensing with a hearing of any costs application pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) include submissions in support of such opposition in any submissions filed pursuant to order 3 or 4 of these orders.

Catchwords:

PRACTICE AND PROCEDURE – contempt – whether respondent in breach of orders of Tribunal – whether applicants adduced admissible evidence capable of establishing contempt of Tribunal – whether contempt application should be referred to Supreme Court

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Residential (Land Lease) Communities Act 2013 (NSW)

Cases Cited:

Australasian Meat Industry Employees Union v Mudginberri Station Pty Limited (1986) 161 CLR 98; [1986] HCA 46

Burns v Corbett [2015] NSWCATAD 188

DVI v ZTT [2021] NSWCATEN 4

Mohareb v Palmer [2017] NSWCA 281

National Australia Bank Limited v Juric [2001] VSC 375

Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3

Category:

Principal judgment

Parties:

Garry Robert Warfield (First Applicant)
Richard ‘Rick’ Pollack (Second Applicant)
David Green (Third Applicant)
Jacqueline Smyth (Fourth Applicant)
Patricia Mashman (Fifth Applicant)
Galt Investments Pty Ltd trading as Lifestyle Village Anna Bay ACN 117 681 535 (Respondent)

Representation:

Solicitors:
Tenants’ Union of New South Wales (Applicants)
Atkinson Vinden (Respondent)

File Number(s):

PC 22/47388

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. By application dated 13 October 2022, Garry Robert Warfield, Richard ‘Rick’ Pollack, David Green, Jacqueline Smyth and Patricia Mashman (Applicants) sought orders referring Galt Investments Pty Limited t/as Lifestyle Village Anna Bay (Respondent) to the Supreme Court to be dealt with for contempt of orders of the Tribunal of 12 February 2021 pursuant to the provisions of s 73(5) of the Civil and Administrative Tribunal Act2013 (NSW) (CAT Act) (referral application).

2. The Respondent opposed the referral application.

3. On 22 December 2022, pursuant to directions made by the Tribunal, the Applicants filed written submissions and affidavits of Ms Smyth and Mr Green in support of the referral application. The Applicants had previously filed, and continued to rely upon, affidavits by Mr Pollack of 11 August 2022 and Mr Warfield of 16 September 2022.

4. On 23 January 2023, in accordance with the Tribunal’s directions, the Respondent filed an outline of submissions, and elected to file and rely upon an affidavit of Damien Daly, a Director of the Respondent who was authorised to affirm the affidavit on its behalf.

5. On 10 February 2023, pursuant to the Tribunal’s directions, the Applicants filed submissions in reply.

6. Although invited to, neither party filed submissions opposing an order pursuant to s 50(2) of the CAT Act dispensing with a hearing of the referral application.

Dispensing with a hearing

7. Pursuant to s 50(2) of the CAT Act, the Tribunal may dispense with a hearing if it is “satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal”. The Tribunal has complied with the requirements of s 50(3) of the CAT Act. The Tribunal is satisfied that it is appropriate to dispense with a hearing and will so order. So doing is consistent with the usual practice of the Tribunal when determining referral applications: DVI v ZTT [2021] NSWCATEN 4.

Principles governing the referral application

8. The principles governing the referral application are not in doubt and do not require extensive reiteration. In DVI v ZTT [2021] NSWCATEN 4 (“DVI”), the Tribunal, constituted by the President, Armstrong J, reviewed the relevant legal principles with respect to referral applications. Her Honour identified at [5] the two procedures for dealing with contempt of the Tribunal provided by s 73 of the CAT Act. It is not in doubt that the first procedure, which is “limited to cases where contempt is committed in the face of, or in the hearing of, the Tribunal” has no present application. The second procedure, which arises pursuant to s 73(5) of the CAT Act, involving alleged breaches of orders of the Tribunal, is the provision upon which the present applicants rely.

9. In DVI, at [7], the Tribunal referred to the decision of the Court of Appeal in Mohareb v Palmer [2017] NSWCA 281 at [19], in which it was held that the matter for determination in a referral application is whether the conduct complained of is “capable” of amounting to contempt of the Tribunal. The Tribunal accepted in DVI at [8] that, if that finding is made, the alleged contemnor must be afforded the opportunity to show why the matter should not be referred to the Supreme Court, which does not require any waiver of the right to silence, which right should be made clear to the respondent to the referral application. Those matters were made clear in the orders which the Tribunal made at the Directions Hearing on 17 November 2022. The Respondent waived its right to silence.

10. In reliance upon the authorities to which it referred, the Tribunal accepted at [9] that the power to refer a contempt application to the Supreme Court is discretionary, and underlined by the consideration that the power to punish for contempt is appropriately invoked “sparingly and only in serious cases”. In Burns v Corbett [2015] NSWCATAD 188 at [93], the Tribunal recorded that, in considering whether to refer a contempt application based upon breach of Tribunal orders to the Supreme Court, the Tribunal should consider whether there were alternate means of enforcing the Tribunal’s orders and, in the exercise of discretion, take into account the availability of those alternatives, and whether any of them has already been invoked.

11. As the Tribunal recorded in Burns v Corbett at [93], and the decisions of the High Court in Australasian Meat Industry Employees Union v Mudginberri Station Pty Limited (1986) 161 CLR 98; [1986] HCA 46 (“Mudginberri Station”) and Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3 confirm, there are two purposes in referring an alleged contempt based on failing to comply with orders of the Tribunal to the Supreme Court. Those purposes are to secure enforcement of the orders for the benefit of the party entitled to that benefit, and to protect the effective administration of justice by demonstrating that orders of the Tribunal will be enforced.

12. In DVI at [11], the Tribunal referred to the common law requirements for a successful prosecution for contempt for breach of a court order as:

1. establishing that the alleged contemnor had notice of the order;

2. the obligation imposed by the order being sufficiently clear to support enforcement of the order against the alleged contemnor; and

3. the conduct of the alleged contemnor amounted to a wilful, as opposed to a “casual, accidental or unintentional” failure to comply with the order.

13. The issue for consideration in these proceedings is the third of the requirements. It is not in issue that the Applicants have established the first and second of the requirements at common law.

14. As is not in doubt (DVI at [24]-[29]), the Applicants bear the onus of proving the facts which would demonstrate that the conduct of the Respondent of which they complain is “capable” of amounting to contempt of the Tribunal. The rules of evidence apply to the current application: CAT Act, ss 38(3), s 33.

15. In DVI, the Tribunal did not need to determine whether the criminal or the civil standard of proof applied to a referral application, having not been satisfied that either standard had been met by the applicant (at [30]). This issue has not been agitated before the Tribunal in the present application. The determination of the present application does not turn on the standard of proof which applies to a referral application.

16. In National Australia Bank Limited v Juric [2001] VSC 375 at [37]-[38], Gillard J held that, in order to prove a “civil contempt of court involving breach of an order of the court”, the plaintiff must prove beyond reasonable doubt that:

1. an order was made by a court;

2. the terms of the order are clear, unambiguous and capable of compliance;

3. that the order was served on the alleged contemnor;

4. the alleged contemnor has knowledge of the order;

5. the alleged contemnor has breached the terms of the order.

17. The third and fourth matters referred to by Gillard J, and by the Tribunal in DVI, are not in issue in these proceedings.

18. Although, as in DVI, nothing turns on it, as the criminal standard of proof would apply to the Applicants’ contempt application if it is referred to the Supreme Court, granting the referral application if the evidence upon which the Applicants rely is not capable of establishing their allegations in accordance with that standard of proof would be problematic.

Background

19. On 12 February 2021, after a contested hearing between six applicants, five of whom are the present Applicants, and the present Respondent, the Consumer and Commercial Division of the Tribunal relevantly ordered that:

1. [The Respondent] is not to interfere, or cause, or permit interference, with Jacqueline Smyth’s right to occupy the whole of site 94, the dimensions of which are specified on the Site Agreement dated 4 December 2003;

2. In accordance with [s]ection 157(1)(a) of the [Residential (Land Lease) Communities Act 2013 (NSW) (RLLC Act)], [the Respondent] is restrained from creating another residential site, or part of another residential site, on any part of site 94, and restrained from erecting or placing a dwelling on any part of site 94;

3. In accordance with [s]ection 37(1)(b)(ii) of the RLLC Act [the Respondent] is to take reasonable steps to ensure that the residents have reasonable access to the community’s common areas, including the existing common area open space on the ocean side of Camellia Circuit;

4. In accordance with [s]ection 38(1) of the RLLC Act, [the Respondent] is not to unreasonably restrict, or interfere with, or permit any unreasonable restriction or interference with, the applicants’ privacy, peace and quiet, or proper use and enjoyment of the residential site and the Community’s common areas, including the existing common area open space on the ocean side of Camellia Circuit.

5. In accordance with [s]ection 157(1)(a) of the RLLC Act, [the Respondent] is restrained from creating another residential site and restrained from erecting or placing a dwelling, on any part of the existing common area open space on the ocean side of Camellia Circuit.”

   20. The orders were amended on 23 February 2021. Nothing is suggested to turn on that for present purposes as their substance remained unchanged.

   21. The Tribunal added a notation to its orders that:

“It is the Tribunal’s view that, if the respondent creates another residential site, or erects, or places a dwelling on any part of the existing common area open space on the ocean side of Camellia Circuit, the respondent will be liable to pay compensation to the Applicants”.

22. There was no appeal against any of the Tribunal’s orders.

23. The factual background to the referral application is found in the Reasons of the Tribunal of 12 February 2021. It is not suggested that, for present purposes, any of the Tribunal’s findings of fact is materially erroneous or inaccurate.

24. The Tribunal found that:

1. Lifestyle Village Anna Bay is a residential (land lease) community, in Port Stephens, New South Wales, which is approximately 30 years old.

2. The development was approved by Port Stephens Council in 1990.

3. The development consent allowed for 96 residential sites, on each of which a moveable dwelling could be erected or installed.

4. The development also provided for common areas, including open space, a swimming pool and a community hall.

5. Some of the sites were too small for the size and type of dwellings that some prospective homeowners wanted.

6. Past village owner, Peter Hendrix, decided to increase the size of home sites, to accommodate the desired dwellings.

7. [Ninety-one] residential sites were established.

8. Moveable dwellings were erected or installed on each of those 91 sites.

9. The size and location of the common areas remained the same.

10. In 2003 or 2004, Port Stephens Council requested that a detailed survey of the Village be undertaken and submitted to Council.

11. A copy of the survey, with subsequent notations, is attached to the Tribunal’s Decision and marked “A”.

12. Sites 23, 41, 62, 86 and 92 became car-parking spaces, or parts of other sites.

…

1. Patricia Mashman is a long term homeowner and resident in Lifestyle Village Anna Bay. Mrs Mashman occupies site 95.

2. On 4 December 2003, Jacquelyn Smyth entered into a site agreement to occupy site 94. The site agreement specifies the dimensions of Site 94 as 15.08 [by] 18.5 [plus] 12.29 [by] 9.78 (the last figure is difficult to read and could, in fact, be 8.78).

3. [The Respondent] … became the owner and operator of the village in 2009.

4. The Respondent has displayed a location map at the entrance to the village since 2010. A copy of the map is attached to this Decision and marked “B”.

5. The map includes sites 86, 87, 92, 98 and 99.

6. Site 92 adjoins sites 79 and 94.

7. Site 87 adjoins sites 73, 95 and 96.

8. On 18 April 2017, Richard Pollack entered into a site agreement to occupy site 74.

9. Attached to Mr Pollack’s site agreement was a document titled “Questions often asked by prospective residents”.

10. The document stated that a feature of the Village was that it was a “Small village (maximum 91 cottages)”.

11. In November 2017, Garry Robert Warfield attended Lifestyle Village Anna Bay and spoke to the Manager, Mr Brian Pobje. Mr Warfield told Mr Pobje that he was enquiring about moving into the village. Mr Pobje showed Mr Warfield the home on site 73.

12. Mr Warfield saw that there was a grassed area behind the rear courtyard of site 73, with a barbeque and three picnic tables.

13. Mr Warfield asked Mr Pobje, “What is that area for?”

14. Mr Pobje replied “It is common area for use by all the village residents.”

15. Mr Warfield asked, “Is there any plan to build anything there?”

16. Mr Pobje replied, “No. It’s been for the residents’ use since the village opened.”

17. Mr Warfield relied on these representations and decided to purchase the home on site 73.

18. Mr Pobje subsequently gave Mr Warfield a site agreement and a disclosure statement.

19. The disclosure statement is required to be given to prospective owners at least 14 days before entering a site agreement, pursuant to [s]ection 21(2) of the RLLC Act.

20. The first section of the disclosure statement is headed “Community Details”. The following information is disclosed in that section:

‘In what year did the community commence operating? 1990

At what stage of development is the community at? FULLY COMPLETED

(If the community is only partially completed or under construction give particulars of all proposed stages, including the estimated date of completion, the total number of sites when finished and whether development consent has been obtained).

Are sites in the community exclusively occupied by homeowners? YES’

1. On 7 December 2017, Mr Warfield entered into a site agreement to occupy site 73.

2. In 2019, a complaint was made to Port Stephens Council about the respondent’s work shed that occupied the corner block near site 89. The complaint was that the shed was unsafe.

3. When Port Stephens Council contacted the respondent about the work shed, the fact that the location map did not reflect the original development consent was also discussed.

4. The respondent made an application to Port Stephens Council to modify the development consent.

5. The application to modify the development consent included the creation of sites 99 and 100 on the storage shed area and the creation of sites 97 and 98 on the open space behind sites 79 and 73 respectively.

6. The respondent did not give the residents’ committee prior notice of its intention to make an application to Port Stephens Council to modify the development consent.

7. Port Stephens Council was required by law to advertise the application to modify the development consent. It failed to do so.

8. The applicants were unaware of the application to modify the development consent.

9. If the applicants had been made aware of the application to modify the development consent, they would have lodged objections with the Council.

10. No submissions in relation to the modification of the development consent were received by Council.

11. On 2 December 2019, Port Stephens Council approved the respondent’s application for modification of the development consent.

12. The approval of the modification of the development was advertised in the local paper. This was the first time that the applicants became aware of the respondent’s intentions to develop sites 97, 98, 99 and 100.

13. Due to the Christmas period and being unaware of the time limit for an appeal to the Land and Environment Court, the applicants did not challenge the Council’s approval of the modification of the development consent.

14. About that time, the respondent also applied for the village to be connected to sewer. The Village was subsequently connected to sewer, at the respondent’s cost, (between $600,000 to $700,000). The connection to sewer has increased the residents’ amenity and enjoyment of their sites and common areas.

15. The respondent has erected dwellings on sites 99 and 100 (the former work shed area).

16. Although the Applicants are upset that they were not part of the approval process, they are not seeking any orders in relation to sites 99 and 100.

17. The Respondent wishes to develop Council approved sites 97 and 98.

18. The Applicants oppose the development of sites 97 and 98 and seek orders restraining the Respondent from carrying out this work.”

The parties’ cases

25. After setting out the relevant orders of the Tribunal of 12 February 2021, and the notation to those orders, and recording the absence of appeal against the orders, the Applicants submitted that:

1. On 19 May 2021 Ms Angela Sweetman (community manager) on behalf of [the Respondent] wrote to Jacqueline Smyth, homeowner site 94 by email. The email attached a survey plan titled IDENTIFICATION SURVEY LOT 94 conducted by a firm of surveying and land development Consultants, North Point Surveys (NSW) Pty Limited for [the Respondent] with survey date 15 February 2021 and plot date 07 May 2021 together with electric file name 361571D.dwg.

2. On a number of dates subsequently the respondent and/or their agents, contractors entered onto site 94 without prior notice to the homeowners or without obtaining the requisite consent of the homeowners to access the residential site in accordance with the provisions of s 39 RLLC Act. On or about 1 February 2002 [sic] [the Respondent] dug a large number of holes in the ground on site 94. Mr Paul Hopper instructed by [the Respondent] proceeded to plant a row of fast growing lilly pilly evergreen trees to form a hedge close to the veranda of the home on site 94. On 4 February 2002 [sic] the homeowner Jacqueline Smyth sent a letter of demand to [the Respondent] requesting that the lilly pilly trees be removed from her site 94.

1. On 14 March 2022 the respondent, after sending short notice by email to some of the residents, held a meeting in the village hall. The respondent’s Mr Damien Daley attended in person and outlined at the meeting his further development plans intended for the community including the installation of two new homes by [the Respondent] in the community by 2023.”

   26. On that basis, the Applicants asserted that the Respondent should be referred to the Supreme Court for contempt of the orders of the Tribunal.

   27. The evidentiary foundation for the Applicants’ complaints is found in Mr Pollack’s affidavit of 11 August 2022, Mr Warfield’s affidavit of 8 September 2022, Ms Smyth’s affidavit of 12 October 2022 and Mr Green’s affidavit of 4 December 2022.

   28. The Applicants identified, correctly, the source of the Tribunal’s power to refer the Respondent to the Supreme Court for contempt (CAT Act, s 73(5)) and accepted, again correctly, that the Tribunal has a discretion as to whether to refer the matter to the Supreme Court.

   29. In Bott v NSW Land and Housing Corporation [2017] NSWCATCD 88 (“Bott”), to which the Applicants referred, the Tribunal referred to the decision of the Court of Appeal in Mohareb v Palmer [2017] NSWCA 281, accepting that the “fundamental question” to be determined is whether the conduct which is the subject of the allegations is “capable of amounting to contempt”, and that the determination of that question “involves a consideration of the relevant factual matters coupled with a requirement to afford the respondent an opportunity to address the Tribunal about whether or not the matter should be referred to the Supreme Court”. As is not in doubt, the Respondent to the present referral application has been afforded, and accepted the opportunity to make submissions about whether or not the matter should be referred to the Supreme Court.

   30. It was submitted by the Applicants (at pars 14-15) in reliance upon decisions such as Bott and Mudginberri Station, that it was not necessary to establish a direct intention to disobey the order, it being sufficient to establish that the breach of an order was not casual, unintentional or accidental. The Tribunal agrees with that submission. If the Applicants’ evidence is capable of establishing a breach of the Tribunal’s orders, such breach could not have been casual, unintentional or accidental on the evidence in this case.

   31. With respect to the merits of the referral application, the Applicants submitted (at par 17) that:

“a.   The orders were clear and unambiguous;

b.   The notation to the orders also unambiguously directed the attention of the respondent to liability to pay compensation to the applicants;

c.   The respondent has provided a surveyed plan of site 94 to Brendan and Jacqueline Smith [dated 7 May 2021] without any report from the surveyor North Point Surveys as to the instructions received or the assumptions made;

d.   On 19 May 2021 Ms Angela Sweetman, community manager Lifestyle Village Anna Bay on behalf of [the Respondent] wrote to Jacqueline Smyth, the homeowner at site 94 by email. The email attached a survey plan titled IDENTIFICATION SURVEY LOT 94 that was conducted by a firm of surveying and land development [c]onsultants, North Point Surveys (NSW) Pty Ltd for their client [the Respondent] with survey dated 15 February 2021. The plot date was 7 May 2021 with an electronic file name 36157ID.dwg. Mrs Smyth had no prior notice that the operator and/or his agents had come onto their residential site 94;

e. It is not clear the plan was prepared by a surveyor and it is of considerable concern that the survey was obtained in breach of the applicant Jacqueline Smyth’s quiet enjoyment and use of residential site 94 and in contravention of the requirements of sections 38 (Right to quiet enjoyment) and 39 (access to residential site by operator) Residential (Land Lease) Communities Act 2013 (NSW);

f.   the Respondent’s Mr Damien Daly at the meeting (March 2022), called at short notice with residents in the community hall, evinced a clear intention to disobey the Tribunal orders. When outlining at the meeting his further development plans intended for the community Mr Daly clearly referred to the installation of two new homes by [the Respondent] in the community by 2023 and he addressed a resident directly saying: ‘the Tribunal is not like a court. Do you know the difference between a court and the Tribunal?’ (Warfield Affidavit at [par 9] ).”

32. In those circumstances, the Applicants submitted that they had established facts and circumstances which were capable of supporting a finding that the respondent was in contempt of orders of the Tribunal.

33. In support of its submissions, the Respondent relied upon an Affidavit of Mr Damien Daly of 23 January 2023, a survey report (Annexure A), and email correspondence between Mr Daly and Mark McDougall, registered surveyor, of North Point Surveys (NSW) Pty Ltd (Annexure B).

34. Mr Daly deposed (at par 5) that “[o]n 7 May 2021, the site dimensions referred to in [order (1)] of the Orders [of the Tribunal of 12 February 2021] were put in a survey as required”. He further deposed (at par 6) that the Respondent “has not created another residential site, or part of another residential site, on any part of site 94. Nor has it erected or placed a dwelling on any part of site 94 pursuant to [order (2)] of the orders”.

35. Mr Daly alleged (at par 7) that, pursuant to the Tribunal’s orders, “there are no items interfering with the residents’ reasonable access to the community’s common areas”. He further alleged (at par 8) that the Respondent “has not unreasonably restricted, or interfered with, or permitted any unreasonable restriction or interference with the Applicants’ privacy, peace and quiet, or proper use and enjoyment of the residential site and the community’s common areas, including the existing common area open space on the ocean side of Camellia Circuit”.

36. Mr Daly alleged (at par 9) that pursuant to the orders the Respondent “has not created another residential site or erected or placed a dwelling on any part of the existing common area open space on the ocean side of Camellia Court”.

37. Mr Daly deposed (at par 11) to his agreement with paragraph 5 of the Applicants’ application, which referred to the Respondent’s provision of a “survey plan” dated 15 February 2021 to Ms Smyth on 19 May 2021, and asserted (at par 12) that he, as the Respondent’s director, had “fully complied with the Orders as [he] understand[s] them”.

38. Mr Daly agreed with the Applicants’ contention that the orders of the Tribunal were “clear and unambiguous”, asserting (at par 13) that the “only ambiguous area was the survey and measurements and boundaries of site 94”.

39. In its submissions, the Respondent submitted (at par 4) with respect to each alleged breach that the Applicants “had provided no evidence to substantiate their claim”. In reliance upon the evidence of Mr Daly, the Respondent submitted (at par 5) that it “had not created another residential site or erected or placed a dwelling on any part of the existing common area open space on the ocean side of Camellia Circuit”.

40. The Respondent submitted (at par 7) that the evidence of Ms Smyth and Mr Green did not “substantiate or evidence any breach of the orders by the Respondent” and that the matters contained in those Affidavits were “merely speculative and do not contain any merit with the subject of these proceedings”. The Respondent reiterated (at pars 8-9) its claim that it has “fully complied with” and “not disobeyed” the Tribunal’s orders.

41. The Respondent denied pars 8(a) and (b) of the Applicants’ primary submissions.

42. After referring to the legal principles, to which the Tribunal has earlier referred and which are not in doubt, the Respondent submitted (at par 14) that:

“The Applicants surmise that the Survey Plan as annexed hereto and evidenced by the surveyor who prepared the same is relied upon exclusively. The Respondent does not possess surveying qualifications and accordingly, relies on a professional who is qualified in this space. The Applicants submit, inter alia, at [p]aragraph 17(e) of their submissions that it is “not clear whether the plan was prepared by a surveyor”. [Again], the Applicants have provided no alternative survey to dispute this. These are simply speculations by the Applicants without substantiation and are rejected in their entirety.”

43. The survey marked “A” appears to have been prepared by a registered surveyor after a survey conducted on 15 February 2021. The significance of the “plot date 07/05/2021” is not apparent from the evidence. That is not suggested to assume significance for present purposes. The email, attachment B of 7 May 2021 from North Point Surveys to Mr Daly said: “As instructed, we have carried out a survey to establish the lease boundaries of site 94. Our survey located the position of buildings, kerbs and the monuments as indicated on our plan”. The surveyor proceeded to set out a number of details about the dimensions and boundaries of site 94. The extent, if any, to which those calculations, and the survey which is said to reflect them, is inconsistent with the Tribunal’s orders, is not apparent from the documents, and does not assume significance for present purposes.

44. In reply, the Applicants submitted (at par 5) that the evidence upon which they relied to demonstrate a breach of, or failure to comply with, order 1 of the Tribunal which prohibited interference with Ms Smyth’s ”right to occupy the whole of site 94”, was:

“a.   The entry onto site 94 by surveyors without authority on 15 February 2021 (affidavit of Jacqueline Smyth 10 October 2022 (“Smyth”) at [par 6]) and as set out in the Affidavit of Mr David Green dated 5 December 2022 (“Green”)… at [pars 3-6] inclusive;

b.   The placement of timber pegs without authority within site 94 (with the dimensions as found by the Tribunal) on 30 and 31 October 2021 (Smyth at [par] 10) and (Green at [pars 712]) inclusive;

c.   I digging of holes within the ground on site 94 and planting of vegetation to form a new hedge without authority on 1 February 2022 (Smyth at [par 18]).”

45. With respect to the alleged breach of order 2, which restrained the Respondent from creating another residential site or part of another residential site on any part of site 94 and restraining the erection or placing of a dwelling on any part of site 94, the Applicants reiterated (at par 6) the evidence upon which they relied, being:

“aIThe matters referred to in [par 5] above in putatively (by the notification on 19 May 2021 – see Smyth at [par 8]) and/or physically altering the boundaries of site 94;

1. The intention stated by Mr Damien Daly to place new dwellings within the park as set out in the affidavit of Garry Warfield dated 8 September 2022 (Warfield at [pars 8-10]) and as set out in the affidavit of Mr Rick Pollack dated 11 August 2022 (“Pollack”) at [par 8];

c.   The conversation of 15 November 2021 between Mr David Green and an electrician at a meter box adjacent to the rear side of site 79, Lifestyle Village Anna Bay as set out in the affidavit of David Green dated 5 December 2022 (“Green”) at [pars 13-14] and the installation of a new electricity trench and electricity junction box to the rear of the car park Camellia Circuit and adjacent to residential site 71 (“Green”) at [par 15].”

46. With respect to orders 3 and 4, which were concerned with residents having reasonable access to the community’s common areas and the Respondent not unreasonably restricting or interfering with the Applicants’ privacy, peace and quiet or proper use and enjoyment of their sites respectively, the Applicants relied (at par 7) on:

a.   The works carried out in the common areas as detailed at [par 13] of PoIk;

b.   The intention stated by Mr Damien Daly to place new dwellings within the park (Warfield at [pars 8-10] and Pollack at [par 8]).”

47. The evidence relied upon by the Applicants was submitted by them to be capable of establishing a breach of order 5 of the Tribunal’s orders. That order restrained the Respondent from creating another residential site or erecting or placing a dwelling on any part of the existing common area open space on the ocean side of Camellia Circuit. The Applicants alleged (8) that:

“a.   The works carried out on 23 February 2021 consistent with the creation of another residential site (Warfield at I 14]);

b.   The intention stated by Mr Damien Daly to place new dwellings within the park (Warfield at [pars 8-10] and Pollack at [par 8]).”

were capable of establishing the breach of the Tribunal’s orders of which they complained.

48. As recorded earlier, unlike most other proceedings in the Tribunal, a referral application is governed by the rules of evidence: CAT Act, ss 33 and 38(3)(a)(i). The Respondent disputed the expertise of the Applicants to express opinions with respect to matters to which it submits only a surveyor, or similarly qualified person, can give admissible evidence. There is merit in that submission. Nothing to which the Tribunal has been referred establishes the qualifications or experience of Mr Daly to express opinions about those matters either.

49. As the authorities establish, the Respondent is entitled to the right to silence. The Respondent has elected to waive that right. To the extent that there are any, the determination of the present application does not involve any attempt to resolve disputed issues of fact. The Applicants bear the onus of adducing evidence which is “capable” of establishing a breach, or breaches, of the Tribunal’s orders. Mr Daly’s conclusions or opinions in that regard are neither admissible nor relevant. Whether, if the application is referred to the Supreme Court, the Applicants discharge their onus of proof is not presently relevant, although if there is evidence on behalf of the Respondent which precludes the Applicants from proving an element of their claim, the Applicants would not have adduced evidence which was “capable” of establishing a breach of the Tribunal’s orders. Mr Daly’s evidence does not fall into that category.

50. Having regard to the allegations in support of the referral application, it is necessary to consider whether, and if so which, of the Applicants’ complaints should be referred to the Supreme Court.

Alleged breach of order 1

51. Order 1 restrained the Respondent from interfering or causing interference with Ms Smyth’s right to occupy the whole of site 94, the dimensions of which the Tribunal found at [29] of its decision of 12 February 2021 (quoted at [24] above), to be 15.08 by 18.5, plus 12.29 x 9.78 (or 8.78) metres.

52. It is reasonably apparent that, in order to conduct the survey which the Respondent commissioned, and which it does not seem to be in contest occurred, it is likely that the surveyor would have entered onto, and may have trespassed upon Ms Smyth’s land. That is not suggested by Ms Smyth to have interfered with her right to occupy the whole of her site. Sensibly, the Applicants do not suggest that those actions would justify a referral of the Respondent to the Supreme Court.

53. The crux of the Applicants’ allegations relates to the placement of timber pegs “within site 94 (with the dimensions as found by the Tribunal)” and the digging of holes “within the ground on site 94”.

54. Although expressed more cryptically, the crux of the Respondent’s contention with respect to these allegations is that the Applicants have adduced no admissible evidence capable of establishing that anything done by its surveyors contravened the order and that, in the absence of evidence from surveyors, or other similarly qualified persons, which was capable of establishing that they did, the Applicants could not establish a breach of the Tribunal’s orders, even on the civil standard of proof.

55. The orders of the Tribunal did not expressly require the Respondent to undertake any survey of any part of its premises. In the reasons for its decision, the Tribunal recorded at [73] that during the hearing when the issue of the dimensions of Ms Smyth’s site was raised, “Mr Daley, on behalf of the respondent, agreed to engage a registered surveyor to carry out a survey of site 94”. The Tribunal referred at [74-75] to Mr Daley’s acknowledgement “that the respondent cannot develop part of a new site on part of an existing site” and that, “if the survey shows that part of site 97 was to be developed on part of existing site 94, he will have a new plan drafted and make another application to Port Stephens Council to modify the development consent, by moving proposed site 97 further to the coast”. The Tribunal recorded at [76] that it “appears … that part of site 97 has been approved to be developed on part of existing site 94”.

56. The difficulty which the Applicants face, particularly as the rules of evidence apply to their application, is that they have no admissible evidence that the survey which the Respondent commissioned, consistently with the intention which the Tribunal recorded it as stating during the hearing of the proceedings, does not accord with the dimensions of the site as found by the Tribunal. It follows that the complaint about the impermissible placement of survey pegs and/or planting of lilly pilly trees on Ms Smyth’s lot is not supported by admissible evidence. Even if the rules of evidence did not apply, and with no disrespect to them, the Applicants are not qualified to express reliable opinions about the accuracy or otherwise of any survey undertaken by an apparently qualified surveyor.

57. Objectively, and relevantly, if, contrary to the assertions of the Respondent, the survey of site 94 has resulted in a diminution of, or interference with Ms Smyth’s right to occupy the whole of her site in accordance with the dimensions specified on the site agreement which she executed on 4 December 2003, whether in the Tribunal, or elsewhere, provided that she has appropriate expert opinion evidence in that respect, Ms Smyth does have other, and potentially more appropriate avenues of redress.

58. The evidence before the Tribunal is not capable of establishing this alleged breach, even on the civil standard of proof. The complaint ought not be referred to the Supreme Court.

Alleged breach of order 2

59. Order 2 restrained the Respondent from creating another residential site, or part of another residential site, on any part of site 94 or erecting or placing a dwelling on any part of site 94. The matters discussed with respect to the alleged breach of order 1 are also relevant to the evaluation of this complaint.

60. If it were accepted, as it could be, that Mr Daly made the statements of intention to which a number of the Applicants deposed, which Mr Daly has not denied making, although that might give rise to a further application in the Tribunal, or the Supreme Court, for further injunctive or other relief, those statements would not in the Tribunal’s view be capable of establishing a breach of an order. They are perhaps best described as evidencing an anticipatory breach of the orders. It is not insignificant that the last time anything is alleged to have been said or done in furtherance of the Respondent’s asserted intentions with respect to Lot 94 or any areas of the village was in March 2022.

61. The actions to which a number of the Applicants depose, which Mr Daly has not denied, with respect to the engagement of an electrician to dig an electricity trench and install an electricity junction box, also suffer from the absence of admissible evidence capable of establishing that the trench or junction box is on Ms Smyth’s lot. The Applicants are unable to establish, by admissible evidence, that anything done by the Respondent’s electrician is in breach of the Tribunal’s order, or that it has thereby created, or is attempting to create another residential site or part of another residential site on any part of site 94.

62. Although the actions alleged by Mr Green are not denied by the Respondent, and may indicate some intention to engage in conduct which breaches the orders of the Tribunal, in the absence of admissible evidence establishing that the works undertaken on behalf of the Respondent constituted the creation of another residential site, or part of another residential site on part of site 94, or attempts to do so, this complaint could not be made out, even on the civil standard of proof.

59. If the activities did constitute a breach of the orders, there would be other, and more effective ways of dealing with, and remedying such behaviour than would a contempt prosecution in the Supreme Court, whether those applications were brought in the Tribunal pursuant to the provisions of the Residential (Land Lease) Communities Act2013 (NSW), or as ancillary proceedings as defined in s 4 of the CAT Act, or by proceedings in the Equity Division of the Supreme Court for injunctive relief and/or damages. Unlike a contempt application, the rules of evidence would not govern proceedings in the Tribunal, and a less onerous standard of proof may be applicable.

Alleged breaches of orders 3 and 4

64. Order 3 required the Respondent to take “reasonable steps to ensure that the residents have reasonable access to the community’s common areas, including the existing common area open space on the ocean side of Camelia Court”. Order 4 restrained the Respondent from unreasonably restricting or interfering with, or permitting such restriction or interference with the Applicants’ “privacy, peace and quiet, or proper use and enjoyment of the residential site and the community’s common areas” including the existing common area referred to in order 3.

65. The obstacles to the potential success these claims are two-fold. The first is that, statements of intention by Mr Daly almost 2 years ago do not constitute a breach of the orders of the Tribunal, although they may indicate an intention to engage in conduct which would do so. Unlike other forms of relief, as is not in doubt, contempt proceedings involve an actual breach of an order of a court or Tribunal. Injunctive relief to prevent an intention being implemented would be available to the Applicants, either collectively, or to individual site holders whose legal or equitable interests were potentially jeopardised by the intended conduct of the Respondent, assuming, which the Tribunal does not, that the statements of intention had been accompanied by subsequent conduct or other statements indicating that the intention was real and continuing.

66. The other obstacle confronting the Applicants is, as with the alleged breaches of orders 1 and 2, the absence of admissible evidence establishing that any works undertaken on behalf of the Respondent, whatever their purpose or intended purpose, involved impinging upon the Applicants’ “reasonable access to the community’s common areas” (order 3), or unreasonable restriction or interference with their “privacy, peace and quiet or proper use and enjoyment of the residential site and the community’s common areas”. The absence of evidence from any of the deponents of affidavits in support of the referral application, which could have been adduced in a form which was admissible, alleging that the Respondent has actually done anything in breach of either order is significant.

67. It is not without significance, both in the context of these and the other alleged breaches, that although the Applicants made their affidavits in late 2022, the last activity relied upon occurred in March 2022. This Applicants have not demonstrated that this complaint is capable of being made out, and it ought not be referred to the Supreme Court.

Alleged breach of order 5

68. Order 5 restrained the Respondent from “creating another residential site” or “erecting or placing a dwelling on any part of the existing common area open space on the ocean side of Camellia Circuit”.

69. The Applicants relied upon Mr Daly’s statement of intention to place new dwellings within the park, and works carried out on 23 February 2021 which were said to be “consistent with the creation of another residential site”. The Tribunal has previously referred to the difficulties associated with reliance upon Mr Daly’s stated intentions in support of their referral application.

70. The difficulties with respect to the “works carried out on 23 February 2021” are two-fold. The fact that the work is “consistent” with the creation of another residential site does not mean that it was, on balance, if not beyond reasonable doubt, for that purpose, or having that effect. The other difficulty, as previously identified, is that the Applicants do not have expert opinion evidence establishing that, whatever their purpose or intended purpose, the works carried out on 23 February 2021, or at any other time, were impermissibly on sites held by any of the Applicants, or had the effect necessary to constitute a breach of order 5.

71. Proof of breach of the terms of order 5 would not entirely depend upon the availability of expert opinion evidence. It would have been open to the Applicants to allege, if it were the case, that their “privacy, peace and quiet or proper use and enjoyment of the residential site and the community’s common areas” had been unreasonably restricted by or on behalf of the Respondent in ways which their evidence identified. There is no evidence of such matters.

Conclusion

72. Without suggesting that the Applicants’ fears are without foundation, the referral application should not be granted. To do so would have no utility.

73. There are two essential reasons why the Tribunal rejects the referral application. The first is that, in the absence of expert opinion evidence establishing that any work done or activities conducted by or on behalf of the Respondent were impermissibly on a site to which the Tribunal’s orders related, the Applicants have no evidence capable of establishing those alleged breaches. In the absence of admissible evidence that the Respondent has done anything which had any of the effects on the rights of the Applicants which the orders of the Tribunal were intended to prevent, or infringed rights which the orders of the Tribunal were intended to protect, the Applicants’ evidence is not “capable” of proving breaches of the Tribunal’s orders.

74. Were the Tribunal satisfied that the evidence relied upon by the Applicants was capable of establishing one or more of the alleged breaches of the Tribunal’s orders, the Tribunal would have been disinclined to exercise the discretion to refer the proceedings to the Supreme Court for contempt. Quite apart from the potentially higher onus of proof which that would entail for the Applicants, and the need for them to obtain potentially not inexpensive expert opinion evidence, if events subsequent to those to which the Applicants depose in their affidavits had occurred, there are avenues which the Applicants could pursue to rectify any of the mischief which the orders of the Tribunal were designed to prevent. Such proceedings, not involving application of the rules of evidence, would be likely to be heard sooner and at considerably less expense than a potentially problematic contempt application in the Supreme Court.

75. The Tribunal does not consider that, if the Respondent breaches the orders of the Tribunal, in the respects alleged in these proceedings, and the Applicants can adduce admissible evidence capable of establishing such breaches, the dismissal of this application would preclude them from bringing a further referral application.

76. For the foregoing reasons, the order of the Tribunal is that the referral application is dismissed.

Orders

1. Pursuant to the provisions of s 50(2) of the Civil and Administrative Tribunal Act2013 (NSW), the Tribunal dispenses with a hearing of the proceedings.

2. The Application of 13 October 2022 for referral of the Respondent to the Supreme Court to be dealt with for contempt of the orders of the Tribunal of 12 February 2021 and/or 23 February 2021 is dismissed.

3. Any party seeking an order for costs of the proceedings file and serve written submissions not exceeding 5 pages in length in support of such application within 21 days of these orders.

4. A party opposing an application for costs file and serve written submissions not exceeding 5 pages in length in opposition to such application within 42 days of these orders.

5. A party opposing an order dispensing with a hearing of any costs application pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) include submissions in support of such opposition in any submissions filed pursuant to order 3 or 4 of these orders.

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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: 15 May 2023