Austin & Ors v Lake Munmorah Residential Resort (Residential Parks) [2011] NSWCTTT 183 (4 May 2011)

CONSUMER, TRADER & TENANCY TRIBUNAL
Residential Parks Division

APPLICATION NO:	
RP 10/57836	

APPLICANT:	
David Bruce Austin & Ors	

RESPONDENT:	
ZW2 Pty Ltd t/as Lake Munmorah Residential Resort	

APPEARANCES:	
Mr Plimmer for the applicants; Ms Lee for the respondent	

HEARINGS:	
15 February 2011, 15 April 2011	

Pursuant to Section 50 of the Consumer, Trader and Tenancy Tribunal Act 2001, orders published on 10 May 2011 are amended as follows:

ORDERS

1.	By consent, applicants to pay water consumption charges incurred from 1 January 2011.  

2.	By consent, water consumption charges will be billed by park owner in accordance with Residential Parks Act Section 39.

3.	By consent, the application for excessive rent for withdrawal of facility is withdrawn.

By consent, the Tribunal notes:  Applicants undertake to support the park owner in representations to Wyong Shire Council to vary the billing period to quarterly.

4.	Application for breach of peace, comfort and privacy is dismissed.

5.	Park owner to pay park resident the sum as set out in schedule for refund of water usage charges not billed, in accordance with Residential Parks Act section 39. 

Schedule

Appn No.	Name	Site	Amount	
11/04787	Ray Lindley & Lynne Lindley	98	$263.41	
10/57836	David Austin	192	$239.15	
10/57840	Ross Fuller & Margaret Fuller	52	$263.62	
10/57843	Colin Place	68	$129.23	
10/57851	Jillian Place	5	$170.94	
10/57857	Douglas Price & Pauline Price	187	$  64.05	
10/57860	Claudia Carrier	53	$194.56	
10/57861	Brian Robson & Pamela Robson	188	$299.45	
10/57864	Laurie Counsel & Joan Counsel	30	$196.38	
10/57876	Elizabeth Brennen	71	$200.00	
10/57884	Jenni Vassallo & Sam Markland	50	$240.71	
10/57886	Bronwen Ozanne & Brian Ozanne	33	$310.22	
10/57887	John Golding & Dorothy Golding	121	$334.45	
10/57894	Nancy Buchanan & Neville Buchanan	42	$177.28	
10/57903	Brian Johnson & Paula Johnson	194	$287.27	
10/57915	John Jessep & Bev Jessep	77	$208.85	
10/58303	Jo Stephenson & Bruce Stephenson	27	$230.15	

REASONS FOR DECISION

The matter was before the Tribunal on 15 February 2011 and the parties entered an agreement which substantially resolved the issues in dispute.

The outstanding matter was the claim for refund or relief by the residents of paying water usage accounts rendered by the park owner.

Residential Parks Act provides that the park resident is liable for water usage if the resident is billed in accordance with Section 39. 

Section 39 (3) provides:

	39

	(3)  	If a resident is billed by the park owner: 

		(a)  	the resident must be billed at the same frequency as the park owner 			is billed by the relevant water supply authority, but may be billed 				more frequently if the parties so agree, and

The park owner issued water accounts for a retrospective period of two years despite the fact that they had been receiving regular accounts from the Wyong Shire Council on a monthly billing period.

There is no doubt that the resident incurred the water usage charges over the two year period, but the failure of the park owner to comply with section 39 (3) would appear to oust their right to payment of the water charges.

The Tribunal acknowledges that this results in the enrichment of the park resident obtaining water for which they have not paid at the expense of the park owner. 

However, the section 39(3) does not appear to provide any discretion in the Tribunal to allow for billing of water usage that has not been billed in accordance with the section. 

There is no power in the Residential Parks Act to make an order for relief from payment, but the findings made would appear to make those accounts unenforceable. An order is made that any monies paid for water not billed in accordance with the section be refunded and an order that the park owner comply with the Residential Parks Act in respect of billing water consumption charges.   

Orders are made accordingly and formal orders are made in respect of the agreement of 15 February 2011.      

P Smith 
Member
Consumer, Trader and Tenancy Tribunal

25 May 2011