Emerson v Wright (Residential Parks) [2008] NSWCTTT 1260 (22 September 2008)

CONSUMER, TRADER AND TENANCY TRIBUNAL
Residential Parks Division

APPLICATION NO:	
RP 08/10798	

APPLICANT:	
Richard and Kathryn Emerson	

RESPONDENT:	
Ella Wright	

HEARING:	
15 May 2008 at Kempsey	

APPEARANCE	
Both parties appeared (applicant by Mr Wakeling)	

LEGISLATION:	
Residential Parks Act 1998	

ORDER

1.	The Tribunal orders that the work listed in Order No.2 of File RP04/56202 dated 20/12/04 is to be completed on or before the date on which the park owner fulfils any obligation to, or accepts, an assignment of the Residential Tenancy Agreement to other tenant/owner (if and when such assignment is sought).

REASONS FOR DECISION

The respondent is a long standing resident of a residential park of whom the applicants are the park owners. The applicant seeks orders that the respondent remove certain structures and items relating to the removable dwelling the subject of a residential site agreement (“the agreement”) between the parties.

Previous orders

The parties agree that an Order sufficient to achieve the outcome sought in this application was made by the Tribunal in 2004 but that Order (“the previous Order”) did not set a date by which the resulting work was to be completed. Rather, that Order referred to “the termination of the Agreement” as providing the time limit by which the work was to be completed.

With respect to the extent of the work ordered to be done (as distinct from its time frame for performance), the previous Order arose as the result of a Tribunal hearing in which it has to be presumed issues of evidence and law were considered and a decision then made. Those issues having been decided, it is inappropriate for the Tribunal to re-visit them; any re-visiting would be expected to be the result of a successful and in-time application for the re-hearing of the original 2004 application.

The substantive element of the previous Order must therefore stand.

The present circumstances

The parties agree that work ordered in the previous order has not been carried out. Nor has the agreement been terminated. If “the termination of the Agreement” were meant to refer to the time when the site is in the future vacated with the concomitant removal of the movable dwelling as distinct from the termination of the applicant’s ownership of the removable dwelling by way of the ownership’s assignment to a new owner, there may well be no imperative for the substantive work as ordered to be carried out for perhaps years into the future.

The park owners tendered evidence that the movable dwelling in its present state does not conform to local government requirements and must be altered in the terms of the previous order to bring it in line with those requirements. 

Evidence before the Tribunal reveals that:

•	Under the agreement, an assignment of the agreement may be made by the respondent with approval from the park owners, such approval not unreasonably to be refused;
•	The respondent is likely to seek that approval in the proximate future for reasons of personal need;
•	Any such assignment is, on the evidence presented to the Tribunal by the park owners, likely to result in the assignee’s purchasing a right to a property which, in its present state and unless the work ordered by the Tribunal is carried out, does not comply with the local Council’s regulations;

Findings

Because the work specified by the Tribunal in the previous orders remains to be carried out, the application effectively becomes an application to specify a date certain for that work to be done.

The term “termination” in the previous order can legitimately be construed as referring to the assignment of the agreement (after the appropriate request).

The park owner is presently breaching local Council regulations because of the uncompleted previous orders, and, it would thus be appropriate within the context of the previous order to clarify a time for completion of the work which is likely to arrive soon.   

Bearing the above in mind, and also bearing in mind the statement of the respondent at the hearing that she has requested such assignment, the Tribunal finds that the appropriately efficacious time certain to clarify the date of completion of the work should be as ordered (and as written above).  

Murray Sainsbury
Consumer, Trader and Tenancy Tribunal

22 September 2008