Wilson v Hacienda Holiday Park (Residential Parks) [2012] NSWCTTT 253 (9 July 2012)

CONSUMER, TRADER & TENANCY TRIBUNAL
Residential Parks Division

APPLICATION NO:	RP 12/10659	

APPLICANT:	
Kathleen Wilson	

RESPONDENT:	
Hacienda Holiday Park Pty Ltd	

APPLICATION:	
That a rent increase is invalid	

APPEARANCES:	
Dr G Martin on behalf of the applicants
Mr J Wilmott on behalf of the respondent	

HEARING:	
14 June 2012 at Tweed Heads	

LEGISLATION:	
Residential Parks Act 1998, s 41	

ORDERS

1.	Raymond and Kathleen Wilson are residents of the park within the meaning of the Residential Parks Act 1998 in respect of site “…” at Tweed River Hacienda Holiday Park.

2.	The rent payable per week from 1 April 2012 in respect of site “…” is $184.65 per week until such rent is increased in accordance with s 53 of the Residential Parks Act 1998.

3.	Any amount of rent which has been overpaid as a result of order 2 is to be refunded to the applicant.

REASONS FOR DECISION

1.	Raymond and Kathleen Wilson occupy a home located on a site at Tweed River Hacienda Holiday Park (Hacienda). On 17 February 2012 Mrs Wilson, along with a considerable number of other residents of Hacienda, lodged an application in relation to a rent increase which was to come into effect on 1 April 2012. When these matters came before the Tribunal for final hearing Mr and Mrs Wilson stated that no notice of rent increase has been issued to them, although rent at the increased amount has been deducted from their bank account since 1 April 2012. They seek an order that the rent increase in respect of their occupation of the premises is invalid as no notice was given.  

2.	Mr Wilmott for the park owner said that he believes Mr and Mrs Wilson are not residents of the park under the Residential Parks Act 1998 (the Act).  He stated that the Tribunal (differently constituted) had previously made an order assigning Mr and Mrs Wilson’s site agreement to Gary Mason and Silvan Toscan. As a result, the park has altered its records to name Mr Mason and Ms Toscan as the residents under the residential site agreement. Any notice of rent increase would issue to them. He said he presumed there was some sub-letting arrangement in place between Mr Mason and Ms Toscan and Mr and Mrs Wilson.

3.	Mr and Mrs Wilson gave evidence that in early 2011 they were negotiating with Mr Mason and Ms Toscan who were interested in purchasing their home located on site “…”. It appears that a contract for sale was entered into. It also seems that the park owner refused to consent to the assignment of the site agreement from Mr and Mrs Wilson to Mr Mason and Ms Toscan. As a result Mr and Mrs Wilson applied to the Tribunal for an order that the park owner had breached the site agreement by unreasonably refusing to consent to the assignment (see s 41 of the Act).  

4.	On 18 March 2011 the Tribunal heard the matter and found that consent to the assignment had been unreasonably withheld. An order was made permitting the assignment. The published order of the Tribunal is as follows:

1.	The Tribunal is satisfied that the respondent park owner has unreasonably withheld or refuse [sic] consent to the assignment of a residential site agreement by the applicant.

2.	The residential site agreement between the applicant and the respondent is assigned to Gary Robert Mason and Silvan Toscan subject to the completion of the sale of the relocatable home situated on site “…”. 

5.	Mr Wilmott states that the member’s verbal order at the conclusion of the hearing did not contain the words “subject to the completion of the sale of the relocatable home situated on site “…””. He acted upon the verbal order and immediately altered the park’s records to show Mr Mason and Ms Toscan as the residents of site “…”. He believes the agreement was assigned from that date by order of the Tribunal.

6.	Mr and Mrs Wilson both gave evidence that, following the Tribunal hearing, the sale did not in fact proceed. They have had no further contact with Mr Mason and Ms Toscan and continue to reside in the home on site “…”. The dwelling is still up for sale. On 1 June 2011 Mr and Mrs Wilson wrote to Mr Wilmott advising him that as the proposed “purchase of our dwelling is not proceeding, we are informing you that we remain as residents of Site “…””. It appears there was no response to that letter. Mr Wilmott continued to treat Mr Mason and Ms Toscan as the residents, although amounts for rent and utilities were directly debited by the park from Mr and Mrs Wilson’s bank account.

7.	In a letter dated 10 April 2012 and at the hearing before the Tribunal Mr Wilmott maintained that the agreement had been assigned as a result of the Tribunal’s order on 18 March 2011. He pointed out that ownership of the structures on the site has nothing to do with who has the right to occupy the site.

8.	No sound recording of the hearing on 18 March 2011 is available due, it appears to some malfunction of the recording equipment. In any event, the written orders were published on the day of the hearing and they are the orders of the Tribunal. Those orders are very clear – the assignment was conditional upon the sale to Mr Mason and Ms Toscan. I note that Mr Wilmott did not seek any amendment or clarification of these orders. Nor did he apply for a rehearing of the matter.

9.	Upon being notified by Mr and Mrs Wilson on 1 June 2011 that the sale was not proceeding and they were remaining in occupation of the site, it should have been clear to Mr Wilmott that the assignment was also not proceeding. Mr and Mrs Wilson have, at all times, been residents of the park as defined in the Act and party to a residential site agreement with the park owner.

10.	The only way rent payable under a residential site agreement can be increased is if the resident is given the requisite notice in accordance with s 53 of the Act. Mr and Mrs Wilson have been given no such notice. As a result their rent remains at $184.65 per week. The park owner has been deducting rent at $202.75 per week from their bank account since 1 April 2012. I am told that as a result they have been overcharged some $209 in rent. Orders are made above accordingly.

11.	Mr and Mrs Wilson signed a form authorising the park owner to debit rent and utilities amounts from their bank account when they became residents of the park. It is of concern that Mr Wilmott has continued to deduct amounts from their account at the same time as he states he has no legal relationship with them. If he did indeed believe that Mr Mason and Ms Toscan were in a contractual relationship with him under a site agreement, then any financial site fees were payable by them. 

Kay Ransome
Chairperson
Consumer Trader & Tenancy Tribunal

9 July 2012