The non-compliant mediation form

A NSW Civil & Administrative Tribunal (NCAT) matter, Davis v Seachange Living NSW Pty Ltd [2022] NSWCATAP 142, between Mr Davis and Seachange Living began as a collective application to the Tribunal disputing a site fee increase at Milton Valley Holiday Park. The operator issued a site fee increase by notice in March 2021 to the 12 permanent home owners in the community. 

Mr Davis, acting on behalf of the other residents, completed the standard form for compulsory mediation of NSW Fair Trading and ticked the box on the form to indicate he is the home owners representative. The mediation was unsuccessful and Mr Davis then lodged an application at the Tribunal on behalf of himself and the 11 other residents to dispute the site fee increase. Mr Davis attached to the Tribunal application a document that listed details for the 12 applicants and signatures 
from seven. 

At formal hearing the Member decided the Tribunal did not have jurisdiction on a collective application challenging a site fee as excessive because the mediation application was not accompanied by a schedule of at least 25% of home owners. The Fair Trading compulsory mediation application form doesn’t have a place for this schedule and does not provide any information that this is a requirement. (The form stipulates ‘Please do not attach anything else to this application form.’) Mr Davis and the other home owners were not aware that their application for mediation was not compliant. The Tribunal Member decided to proceed in the hearing to look at the substantive part of the application; in case it was wrong to say they didn’t have jurisdiction and found that the home owners had not made their case that the proposed site fee increase was excessive. The home owners appealed the Tribunal’s decision. 

The Appeal Panel found that the Tribunal Member was wrong in finding they did not have jurisdiction to determine the site fee increase challenge on the basis that 25% of home owners had not signed the application for mediation. 

Section 69 of the Residential (Land Lease) Communities Act 2013 (RLLC Act) outlines the process for applying for mediation in site fee increase disputes and specifically refers to the requirement for the mediation form to be signed by at least 25% of the home owners who received the site fee increase. Section 71 of the RLLC Act then outlines what the next steps are if mediation fails and it specifically refers to the need for the mediation application form to comply with section 69 as a requirement before proceeding to the Tribunal. 

The Appeal Panel found that failing to comply with the requirements in section 71(1b) does not result in the Tribunal not having jurisdiction to hear the matter. This is a good result and ensures that other home owners who have not attached the schedule of home owners to the mediation application will not have their Tribunal application dismissed on this basis. 

The important issue does remain: Fair Trading needs to change their compulsory mediation form so that it’s not confusing or misleading for parties and doesn’t give wriggle room for mischief by operators wanting to question the 25% threshold. The Tenants’ Union (and others) have raised the issue with Fair Trading and look forward to a resolution.

One of the home owners is legally represented by the Tenants’ Union and has filed a Summons commencing an appeal to the Supreme Court of NSW from part of the decision of the Tribunal Appeal Panel.

This article was published in Outasite magazine issue 8. Outasite is published annually. Outasite Lite email newsletter, is sent several times a year – subscribe here. All past issues are available in the archive.