Glasby and Ors v Hellemons Phillips Holdings Pty Ltd (Residential Parks) [2013] NSWCTTT 21 (18 January 2013)

CONSUMER TRADER AND TENANCY TRIBUNAL
Residential Parks Division

APPLICATION NOS:	RP 12/40732
				RP 12/41071
				RP 12/41045
				RP 12/41081
				RP 12/41076
				RP 12/41082
				RP 12/47341

APPLICANTS: 	Heidi Glasby, Marguerite Nolan, George Houlden, Margaret Robson, Leonie Reeves, Rhonda Traecey, Jason Hall and Robyn Keller 

RESPONDENT: 		Hellemons Phillips Holdings Pty Ltd

APPLICATION: 		Excessive rent increase

APPEARANCES: 	Ms F Urquhart for the applicants, Mr R Tarnawsky for the respondent

HEARING: 			5 December 2012 at Lismore

LEGISLATION: 		Residential Parks Act 1998
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ORDERS

1.	On 5 December 2012 in each matter an order was made that the rent increase was excessive.

2.	On file RP 12/40732 an order was made that the rent was not to exceed $101.04 for the period 4 September 2012 to 3 September 2013.

3.	On file RP 12/41071 an order was made that the rent was not to exceed $99.80 for the period 4 September 2012 to 3 September 2013.

4.	On file RP 12/41045 an order was made that the rent was not to exceed $101.15 for the period 4 September 2012 to 3 September 2013.

5.	On file RP 12/41081 an order was made that the rent was not to exceed $96.72 for the period 4 September 2012 to 3 September 2013.

6.	On file RP 12/41076 an order was made that the rent was not to exceed $96.72 for the period 4 September 2012 to 3 September 2013.

7.	On file RP 12/41082 an order was made that the rent was not to exceed $94.02 for the period 4 September 2012 to 3 September 2013.

8.	On file RP 12/47341 an order was made that the rent was not to exceed $88.67 for the period 4 September 2012 to 3 September 2013.

REASONS FOR DECISION

APPLICATION

1.	In each case an application was made that a rent increase was excessive. On 29 June 2012 the respondent gave each applicant written notice of a rent increase effective 4 September 2012. The rent increases in each case were all different but they were in amounts that increased the rent for all applicants to $105.00 per week.

JURISDICTION

2.	The Tribunal has jurisdiction to hear and determine the applications pursuant to the Residential Parks Act 1998 (“the Act”).

PROCEEDINGS

3.	The applications were listed for hearing on 5 December 2012. The cases were heard on that day and the hearing was sound recorded. The orders were processed on 10 December 2012. The respondent has now asked for written reasons to be provided in respect of the decisions. One of the applications (RP 12/47341) was filed out of time. The time for filing the application was extended at the hearing for the reasons which were given orally.

THE LAW

4.	S 55 of the Act allows a resident to seek an order that a rent increase is excessive. S 57 sets out the matters to be considered in determining whether or not the rent increase is excessive, namely (a) the general market level of rents for comparable premises in the same park or other parks; (b) the value of the residential premises; (c) the frequency and amount of past rent increases; (d) the Consumer Price Index; (e) the conduct of the parties; (f) the amount of outgoings in respect of the premises required to be paid by the park owner; (g) the estimated cost of services provided by the park owner or the resident; (h) the value or nature of fittings or appliances provided with the premises; (i) the state of repair and general condition of the premises; (j) any work done to the premises by the resident with the consent of the park owner and (k) any other relevant matter. S 58 provides that if the Tribunal determines that a rent increase is excessive, the Tribunal may order that the rent is not to exceed a specified amount for a period not exceeding 12 months.

EVIDENCE

5.	Both parties made written submissions. The respondent relied upon oral evidence given by an accountant, Mr Trustum. The representatives of the parties made oral submissions.

FINDINGS

6.	The respondent has given rent increase notices which seek to increase the rent in each case to $105.00 per week. There are difficulties in attempting this process because it involves increasing the rent of various residents by different amounts. In these applications the Tribunal is not being asked to determine whether the rent being charged is excessive. It is arguable that $105.00 per week is not an excessive rent. However, the Tribunal is not being asked to determine whether $105.00 per week is excessive. What the Tribunal is being asked to determine is whether the rent increase is excessive and that requires a consideration of the section 57 factors, the current base rent and the percentage increase that is being sought to be imposed by the respondent.

7.	The rent increases sought to be paid by these applicants varied from 12 per cent to 27 per cent. An analysis of all the evidence and the section 57 factors discloses that there is no way that the Tribunal could allow rent increases of this magnitude.

8.	A finding was made that all of these increases were excessive.

9.	The Tribunal then had to determine the maximum amount that could be charged by way of a rent increase.

10.	The matters considered significant in making this determination were (a) the rentals being paid in other parks; (b) the Consumer Price Index which was 1.3 per cent to June 2012; (c) that there had not been a rent increase since 2010 and (d) the evidence of Mr Trustum that the park owner’s outgoings for 2009 to 2012 were $13.03 per week, for 2010 to 2012 were $12.23 per week and for 2011 to 2012 were $4.54 per week.

11.	Other matters raised in the evidence were considered to have lesser significance.

12.	A finding was made that the rent increase in each case should be 8 per cent more than the rent currently being paid by each applicant. The orders were processed accordingly.

13.	A finding was also made that it was appropriate that the new rentals should apply for a period of 12 months.

Kim Holwell
Member
Consumer Trader & Tenancy Tribunal

18 January 2013