Hacienda Caravan Park Pty Ltd v Raethke (General) [2012] NSWCTTT 154 (17 April 2012)

CONSUMER, TRADER AND TENANCY TRIBUNAL
General Division

APPLICATION NO:	
GEN 11/50069	

APPLICANT:	
Hacienda Caravan Park Pty Ltd	

RESPONDENT:	
Peter Raethke	

HEARING:	
Tweed Heads, 24 February 2012	

APPLICATION:	
Application for termination of an occupation agreement and payment of $2,500.00	

APPEARANCES:	
Mr Wilmott, Director for the applicant; Dr Gary Martin of Affiliated Residential Park Residents Association NSW Incorporated (“ARPRA”) for the respondent	

LEGISLATION:	
Contracts Review Act 1980
Holiday Parks (Long-term Casual Occupation) Act 2002 (“Long-term Casual Occupation Act”)
Section 41 Residential Parks Act  (“RPA”)	

KEYWORDS:	
Site agreement, occupation agreement, termination, assignment, fixed term, unjust	
______________________________________________________________

ORDERS

1.	Clause 5 of the occupation agreement between the parties of 5 September 2011 is to be amended by the park owner so that the fixed term agreement is beginning on 5 September 2011 and ending on 5 September 2012.

2.	The respondent is to sign the occupation agreement between the parties of 5 September 2011.

3.	The application for termination of the occupation agreement is dismissed.

4.	The application for the respondent to pay the applicant the sum of $2,500.00 is dismissed.

REASONS FOR DECISION

Jurisdiction

1.	The applicant sought termination of the respondent under an alleged occupation agreement for Site 67 at the park pursuant to the Long-term Casual Occupation Act. The respondent argued the agreement was a site agreement under the RPA. The Tribunal has jurisdiction to hear matters under both acts.

Procedural History

2.	The application was filed on 12 October 2011. It first came before Member Pickard on 28 October 2011. Member Pickard adjourned the matter for formal hearing. Usual directions were made for exchange of documents. The application was listed to be heard with RP 11/44750 for hearing. RP 11/44750 is subject of a separate reserved decision.

3.	The applicant provided documents to be considered for the hearing on 14 November 2011. The respondent provided documents on 24 November 2011.

4.	A hearing on 2 December 2011 was adjourned. 

Evidence of the parties

5.	The applicant said that the respondent was a holiday occupation resident under the Long-term Casual Occupation Act.

6.	The respondent indicated that on 27 August 2011, he provided a document signed by himself and the vendors in relation to the purchase of the site. That document stated:

“We are reassigning our residential site agreement and ownership of the above dwelling to Peter Raethke from today, Saturday 27 August 2011.”

7.	The applicant denied he was ever given a copy of this document. He never assigned the residential site agreement. 

8.	On 29 August 2011, the respondent signed a form “Application for Occupancy of Site” for site 67. 

9.	The form stated that lodgement of the application does not constitute acceptance of the new owner being an occupant of the park. 

10.	The application stated that the respondent was not to occupy the site at all until the following documents were supplied:

(a)	fully completed and signed application for occupation;

(b)	disclosure document by park owner and park rules signed by the applicants;

(c)	three (3) fully dimensioned and accurate site plans reflecting structures on the site were provided;

(d)	payment of $15.00 for preparation of the occupation agreement;

(e)	occupation agreement signed by applicant and park owner; and

(f)	letter from the park owner acknowledging that occupancy is accepted and approved.

11.	In signing the application, the respondent also agreed to vacate the premises immediately on request of the park owner if he occupied the site prior to providing the documents outlined in paragraph 10.

12.	The park owner wrote to the respondent on 30 August 2011. The letter indicated that the moveable dwelling to go on the site must be compliant with all regulations. Working smoke alarms were to be installed. The respondent was to provide the date they wished to commence occupancy of the site so an occupation agreement could be prepared. 

13.	The respondent relied on another handwritten document dated 1 September 2011. The park owner acknowledged he received this. It stated:

“To whom it may concern,

I wish to advise you that I will be commencing occupancy of Site 67 on Monday, 5 September 2011.

Thanking you,
Peter Raethke”

14.	The date of the alleged occupation agreement was 5 September 2011. It was common ground it was not singed by the respondent, only the park owner. The fixed period of the agreement was from 5 September 2011 to 5 October 2011.

15.	In oral evidence, the applicant said that the respondent never appeared at the office to sign the occupation agreement on 5 September. Prior to living at Site 67, he had been living at Raymond Hill in Queensland. The applicant acknowledged that Mr Raethke had lived at Site 156 in a room rented to him by the resident of that site. There had been complaints about his behaviour at that site. The park owner's intention had been to approve his occupation of Site 67 only for a trial period.

16.	In his oral evidence, Mr Raethke said that from about 2007, he had lived at various addresses in Queensland. He shared accommodation at Site 156 for a few months in 2011. He moved to Site 156 after an accident caused injury to his arm.

17.	The respondent said that in discussions with the previous owners, he was given a copy of the residential site agreement and rent deposit book. He stayed at Site 156 until he moved into Site 67. He did renovations to Site 67 for a few weeks prior to moving in. He was not given a copy of the occupation agreement to sign at any stage. It was not disputed that he had paid all fees to the date of the hearing. He enquired at the office for a reading of the electricity meter and deposits were made for electricity with the deposit book.

18.	In relation to the application for occupation, Mr Raethke indicated that he considered he had assignment of the site agreement from the previous owners. He did not sign the occupation agreement because he wanted to seek advice from the Park Residents’ Association. 

19.	Mr Raethke said that when he put in the application for occupation, he spoke with a manager called Peter Simons. The applicant denied that Mr Simons had the power to enter into occupation or site agreements with residents. Mr Raethke said Mr Simons told him to sign a direct debit form and the lease but he was never asked to come to the office and sign it.

20.	On 9 September 2011, the park owner wrote to the respondent indicating that the respondent had occupied the site since 26 August 2011 and had failed to:

(a)	sign the occupation agreement prior to occupying the site;

(b)	sign the direct debit authority form; and

(c)	pay occupation fees for the site.

21.	The respondent was asked to vacate the site immediately. 

22.	Mr Raethke said if he was evicted from Site 67 he would have no other place to live.

23.	On 15 September 2011, the park owner wrote to the respondent indicating they had received a Centrelink rent form on 14 September 2011 in relation to Site 67. The park owner indicated they were unable to complete the form and returned it to the respondent. That Centrelink form indicated that Site 67 was the respondent’s residential address and that he had started living at the address on 26 August 2011, prior to the date on the agreement of 5 September.

24.	In relation to the application to Centrelink for rent assistance, Mr Raethke said he took it to the office and was told to pick it up the next day. When he returned the next day, the park office indicated it had been mailed to Centrelink. When he checked with Centrelink they said they had not received the form at all. He added that he provided a statutory declaration to Centrelink and they provide him rent assistance for Site 67.

25.	The park owner wrote a letter on 22 September 2011 asking for the structures on Site 67 to be removed and attaching a notice of termination and the unsigned occupation agreement. The notice of termination of occupation agreement indicated that the grounds of termination were:

“The unsigned occupation agreement dated 5 September 2011 with fixed term ending on 5 October 2011 park owner does agree to extend the fixed term agreement. You are required to deliver up vacate possession of the site to the park owner on 5 October 2011. The structures on the site are to be removed by 5 October 2011.”

26.	It appears that this notice had an error and ought to have read “...the park owner does NOT agree to extend the fixed term of the agreement” [my emphasis].

27.	Mr Raethke said the termination notice was served at Site 156 by Peter Simons on Diane Regeling. It was not served on him personally. Ms Regeling gave him the notice. It was submitted the notice was served contrary to the regulations in the Act.

28.	In cross examination, the applicant admitted that the previous agreement for Site 67 had been a residential site agreement since 2000. In fact, the applicant stated it was an unusual agreement for that area of the park as the area was dedicated under Council plans for holiday purposes and short term occupation. He said the previous vendors had remained under a site agreement because they had originally commenced at the park when there were no written agreements at all. The park owner said; if a request to assign the residential site agreement had been provided, he would never have consented because it was a short term site. The applicant acknowledged he received the handwritten note written by Mr Raethke on 1 September 2011. As it indicated, Mr Raethke would take occupation on 5 September and the occupation agreement was completed to reflect this date.

29.	The respondent indicated that Site 67 should be treated as a residential site agreement under the RPA. He said the eviction notice was served at Site 156. Further, the provision of an occupation agreement was the wrong agreement in the first instance.

Findings and Determination

30.	The issue is whether the site agreement of the vendors for Site 67 was assigned to Mr Raethke or whether the occupation agreement applies.

31.	Section 41 of the RPA states:

41	Right to assign rights and obligations or to sub-let

…..

(3)	It is, however, a term of every residential site agreement that the park owner may not unreasonably withhold or refuse consent to an assignment or sub-letting referred to in subsection (1).

32.	Inferred in this legislation is that the park owner must be asked for his consent so he can consider whether to refuse it. It is only after he is asked that any refusal can be assessed as to reasonableness. Evidence as to whether the park owner was ever asked for his consent is critical. Consent must be sought and such an application for consent should be unequivocal and, preferably from an evidential point of view, in writing, though this is not essential. 

33.	I accept the position of the park owner that he never received the letter of 27 August 2011 from the vendors indicating they were reassigning the residential site agreement to the respondent. In any event, even if the park had received this letter, it was couched in terms of the vendors stating they had reassigned the lease. The legislation states that the consent of the park owner should be sought and may not be unreasonably refused, not that the vendor has a right to assign. Mr Raethke proceeded with the purchase transaction for Site 67 without having addressed the issue of consent to an assignation of a site agreement. The application document he signed on 28 August clearly refers to occupation agreement arrangements and not a site agreement. 

34.	Further, even if the park owner had been asked for consent, his refusal would not have been unreasonable. I accept the park evidence, which was admitted by the respondent’s representative, that Site 67 is in a holiday area of the park. I accept that it was an historical anomaly that the vendors had a site agreement arising from the period at the park where there were no written agreements at all for sites. This was an anomaly that the park owner would have sought to set right by not agreeing to a site agreement being assigned at Site 67. 

35.	Section 5 of the the Long-term Casual Occupation Act is as follows:

5   Act applies to long-term casual occupants

(1)  	This Act applies to any occupation agreement in relation to a site:

(a)  	entered into by an occupant who has a principal place of residence somewhere other than the site, and

(b)  	under which the occupant installs the occupant’s own moveable dwelling on the site and leaves it there all of the time that the occupation agreement continues in force, and

(c)  	under which the occupant can occupy the site for no more than 180 days in any 12-month period (in a continuous or broken period), and

(d)  	under which:

(i)	the occupant agrees, with the consent of the park owner, to be an occupant on a casual basis for at least 12 months, or

(ii)  	the occupant has, with the consent of the park owner, been an occupant on a casual basis for at least 12 months.

36.	The evidence shows that Mr Raethke had not been at Site 156 for a long period. He came and went from various abodes in Queensland. It would not have been unreasonable for the park owner to consider that Site 67 was not to be his permanent place of residence at the time Mr Raethke applied. It would not have been unreasonable for the park owner to consider that Mr Raethke may continue to live for varying periods in Queensland. There was no evidence to show that the park owner was made aware that this was to be the respondent’s primary residence.

37.	Should the occupation agreement be terminated? The respondent claims it was served incorrectly. The Long-term Casual Occupation Act states:

47   Service of documents

(1) 	A notice or other document required to be given to an occupant under this Act may be given:

(a)  	by delivering it personally to the occupant or a person apparently of or above the age of 16 years by whom the occupation fees payable by the occupant are ordinarily paid, or

(b)	by delivering it to the site occupied by the occupant and by leaving it there with some person apparently of or above the age of 16 years for the occupant, or

38.	The notice of termination was served after the occupation agreement commenced. It was served at Site 156, not Site 67. It was not served in accordance with the regulations. It ought to have been served on Mr Raethke at Site 67 personally or someone else at that site above 16 years of age.  

39.	Section 19 the Long-term Casual Occupation Act states that an agreement may be terminated at the end of the fixed term period. That was the ground purported in the 22 September notice relied on in this hearing. 

40.	However, Clause 6 of the occupation agreement indicated that the agreement terminates on the fixed term date unless the park owner agrees to extend the term. Section 19 of the Long-term Casual Occupation Act also states an agreement may include a provision for its continuation after the fixed term ends.

41.	As to the issue of continuation, the 22 September termination notice was confusing. The typographical error in the termination notice itself renders it difficult to comprehend. On one hand it gives a vacation date. On the other hand, by leaving out the word “not”, the respondent was presented with a confusing notice. It could be argued that the typographical error implied that the park owner had agreed to extend the term. 

42.	It is true the respondent did not sign the occupation agreement or sign the direct debit authority. For a short period, he may have failed to pay occupation fees. However, such fees had been paid up to the hearing. That ground alleged in the cover letter for termination was not an issue at the time of hearing.

43.	The application for termination is dismissed.

44.	I make no findings into the alleged claims of misbehaviour by the respondent when he was renting at Site 156. There was no substantial evidence provided by either of the parties in relation to these claims. But the applicant’s failure to provide any substantial evidence on this issue raises the question whether the fixed term period of one month for the occupation agreement was reasonable.

45.	The purpose of the the Long-term Casual Occupation Act is to create agreements for a period of more than a month. Section 5(c) and 5(d) indicate a statutory intention for occupants to be on a causal basis for a 12-month period and to occupy the site in continuous or broken periods of no more than 180 days.

46.	Section 50 of the Long-term Casual Occupation Act stipulates that nothing in the act precludes the operation of the Contracts Review Act 1980. 

47.	If I find the short fixed term period of the occupation agreement to be unjust, Section 7 of the Contracts Review Act 1980 empowers the Tribunal to vary, in whole or in part, any provision of the contract. Further, section 27(1)(a)(ii) of the Long-term Casual Occupation Act  empowers the Tribunal to require a party to carry out any act in performance of the agreement or to resolve the disagreement.

48.	When finding a provision of a contract to be, the Tribunal is to consider the public interest and all the circumstances of the case. In my view, it is in the public interest that agreements between park owners and residents or occupants should be precise and clear. They should be formulated with a view to a clear understanding as to whether the agreement is for a more permanent site agreement or for an occupation agreement.

49.	If the Tribunal is to vary a provision of the contract, some factors I may consider under Section 9 of the Contracts Review Act 1980 include:

(a)	whether or not there was any material inequality in bargaining power between the parties to the contract;

(b)	whether or not any provisions of the contract impose conditions which are unreasonably difficult to comply with or not reasonably necessary for the protection of the legitimate interests of any party to the contract.

50.	Considering the lack of any real evidence as to why the fixed term was for such a short period, I find that the fixed term clause was unjust. A more just agreement would be one for 12 months as intended under the statute. 

51.	The bargaining power of a park owner is always superior to a resident or occupant. The onus is on the park owner to clarify without any doubt the nature of any agreement. The application of a fixed term period of a month was not required to protect the interests of the park owner. On the contrary, such a short period is a real threat to the interests of the respondent who had made a significant financial outlay and obviously sought occupation for a period longer than one month.

52.	No evidence at all was provided for the order for payment of $2,500.00. This is not allowed.

G Bassett
Member
Consumer, Trader and Tenancy Tribunal

17 April 2012