Hacienda Caravan Park Pty Ltd v Raethke (General) [2013] NSWCTTT 301 (25 June 2013)

CONSUMER TRADER AND TENANCY TRIBUNAL
                                       General Division

APPLICATION NO:  		GEN 12/46242  

APPLICANT: 			Hacienda Caravan Park Pty Ltd

RESPONDENT: 			Peter Raethke

APPLICATION: 	Termination of occupation agreement; removal of structures and compensation

APPEARANCES: 	Mr J Willmott for the applicant; Dr G Martin for the respondent

HEARING: 				22 March 2013 at Murwillumbah

LEGISLATION: 	Holiday Parks (Long Term Casual Occupation) Act 2002; Residential Parks Act 1998

ORDERS

1.	The occupation agreement is terminated.

2.	The respondent is to give possession of site 67 to the applicant on 31 July 2013.

3.	The claim for compensation is dismissed.

REASONS FOR DECISION

APPLICATION

1.	By an application filed 11 September 2012 the applicant sought orders for the termination of an occupation agreement, the removal of structures from the site occupied by the respondent and compensation in the sum of $2,725.00.

JURISDICTION

2.	There is a jurisdictional issue in this case. The applicant claims that the respondent occupies his site pursuant to the Holiday Parks (Long-Term Casual Occupation) Act 2002 (“the Casual Occupation Act”). The respondent claims that his occupation is via the Residential Parks Act 1988 (“the Parks Act”).

PROCEEDINGS

3.	A directions hearing was held on 7 December 2012. The case could not be resolved on that day. It was set down for hearing on 22 March 2012 and it was heard on that day. Thereafter the decision was reserved pending the giving of these reasons. The hearing was sound recorded.

EVIDENCE

4.	Oral evidence was given by the respondent. Submissions were made by Mr Willmott and Dr Martin. A number of documents were tendered. The parties also relied upon previous decisions of the Tribunal.

5.	In making findings I shall endeavour to refer to the main features of the evidence, the submissions and the previous decisions relied upon. Findings are made on the balance of probabilities. The applicant has the onus of proof.

FINDINGS

6.	The respondent lived at Bundaberg and Ipswich prior to moving to live at the Hacienda Park where he resided with a partner at the partner’s site 156. He was living there for about six months before moving to Warwick to live and work. He was at Warwick for about 18 months until an accident at work caused him to return to live at site 156 at the park. His partner subsequently sold the premises on site 156 and the respondent purchased the premises on site 67. 

7.	The purchase of the premises on site 67 took place in August 2011. The vendor of the premises purported to assign his site agreement re site 67 to the respondent. However, the applicant did not consent to the assignment. I am satisfied that the site agreement of the vendor was not assigned to the respondent. The same finding has been made in other proceedings between the parties on file GEN 11/50069.

8.	On 29 August 2011 the respondent signed an application for occupancy at the park. The form stated that lodging the application did not constitute acceptance of the respondent as an occupant at the park. The respondent was told he needed to supply photo identification, written references, proof of residential address, rent receipts and proof of income. In signing the application the respondent gave an undertaking that under no circumstance was he to occupy the site until he had supplied (a) fully completed and signed application for occupation; (b) disclosure document by park owner and park rules signed by applicant; (c) fully dimensioned and accurate site plan reflecting the structures on the site and distances to adjoining structures; (d) payment of $15.00 for preparation of occupation agreement; (e) occupation agreement signed by applicant and park owner and (f) letter from park owner acknowledging that occupancy is accepted and approved. The application also stated that in the event the respondent did occupy the site prior to providing this information, he gave an undertaking to vacate the premises immediately on the request of the park owner.

9.	On 30 August 2011 the applicant wrote to the respondent acknowledging receipt of the application. The applicant asked the respondent to advise in writing the date he wished to commence occupancy of the site so that an occupation agreement could be prepared prior to him commencing to occupy the site. On 1 September 2011 the respondent wrote to the applicant stating that his occupation would commence on 5 September 2011. The applicant submitted an occupation agreement to the respondent but the respondent did not sign it. On 9 September 2011 the applicant wrote to the respondent requesting that he vacate the site immediately because of his failure to sign the occupation agreement and a direct debit authority form and his failure to pay occupation fees. The respondent delivered a Centrelink form to the applicant for completion and signature. On 15 September 2011 the applicant returned the form to the respondent stating that the applicant was unable to complete the form.

10.	The occupation agreement submitted to the respondent for acceptance and signature provided for a fixed term of one month to 5 October 2011.

11.	On 22 September 2011 the applicant wrote to the respondent giving notice of termination of the unsigned occupation agreement. The respondent did not vacate the site. The applicant brought an application for termination which was heard by the Tribunal on file GEN 11/50069. The application for termination was dismissed because the notice was not correctly served and there were discrepancies with the notice itself. In that case the Tribunal evidently assumed there was an existing occupation agreement even though it had not been signed by the respondent and having received evidence that the respondent considered (erroneously) that the site agreement of the vendor of the premises had been assigned to him. The Tribunal ordered that clause 5 of the occupation agreement is to be amended to provide for a fixed term from 5 September 2011 to 5 September 2012. The applicant accepted this order. The Tribunal ordered the respondent to sign the occupation agreement. The respondent did not sign the agreement. The respondent made an application for a re-hearing of the case arguing that the respondent was occupying the site as his principal place of residence, that his occupancy was pursuant to the Parks Act and that the Tribunal could not order him to enter into an occupation agreement. The application for a re-hearing was refused. The respondent did not appeal the decision on file GEN 11/50069 to the District Court. Consequently we have a situation where there is a current order of the Tribunal to the effect that there is a 12 month occupation agreement between the parties.

12.	On 2 August 2012 the applicant wrote to the respondent stating that the applicant would not be extending the fixed term which ended (in accordance with the order) on 5 September 2012. The applicant referred to clause 6 of the occupation agreement which stated “if the park owner does not agree in writing to extend the fixed term of this agreement prior to the end of the fixed term, then this agreement is at an end and the occupant agrees to vacate the site on the date of the end of the fixed term”. The applicant served a notice of termination requiring vacant possession of the site on 5 September 2012. No issue was taken at the hearing as to the form or manner of service of the notice. The respondent did not vacate the site pursuant to the notice and on 11 September 2012 the applicant made the application in this case for termination of the occupation agreement.

13.	The evidence is that the respondent occupies the site as his principal place of residence. He does not own or occupy any other residence. He has been paying site or occupation fees which have been increased since 2011. His driver’s licence and Centrelink records show site 67 as his address.

14.	I have been referred to several previous decisions of the Tribunal.

15.	In Wilson v Deemay Enterprises (Residential Parks) [2012] NSWCTTT 252 (hereafter “Wilson”) the Tribunal dismissed an application for the applicant to be recognised as a resident pursuant to the Parks Act. The Tribunal found that whilst the applicant was occupying the premises as his principal place of residence at the time of the application (as distinct from the period between 2001 and 2011) he was doing so without the protection of an agreement and without the permission of the park owner.

16.	In Hayward v Hastings Riverside Co Pty Ltd [2008] NSWCTTT 1002 (hereafter “Hayward”) where the Tribunal had a situation where the residents had entered into a site agreement pursuant to the Parks Act but did not occupy the house on the site as their principal place of residence. The Tribunal found “despite the existence of the written site agreement, the Haywards are in fact not residents under a residential tenancy agreement within the meaning of the Residential Parks Act” and “the signing of the residential site agreement cannot alter the fact that they did not meet the requirements of the Residential Parks Act”.

17.	In Gennaker Pty Ltd v Bennett [2012] NSWCTTT 501 (hereafter “Gennaker”) I was confronted by a factual situation which was opposite to the previous case. Here the parties had entered into an occupation agreement but the respondents were occupying the site as their principal place of residence. I found that the Parks Act applied to their occupancy and that the occupation agreement pursuant to the Casual Occupation Act was void. The applicant has appealed this decision to the Supreme Court.

18.	In the present case whilst the respondent is residing in the premises as his principal place of residence, he has not signed an occupation agreement which may be capable of being construed as a site agreement rather than an occupation agreement. The park owner only gave him permission to reside at the site for one month. The respondent did not supply the documents sought by the applicant in the application for occupancy. The problem for the respondent is that he purchased the premises on site 67 without ensuring that he would be accepted as a long term resident at the park.

19.	I realise that the Tribunal in GEN 11/50069 extend the term of the occupation agreement from one month to twelve months. I have some reservations about whether that decision is correct. I have difficulty with an agreement being extended in circumstances where the respondent was not prepared to be a party to the one month occupation agreement that was submitted to him.

20.	However, in any event, that order remains current and it gives the applicant the right to terminate the occupation agreement as at 5 September 2012.

21.	The respondent is seeking an order to dismiss the application in the present case on the basis that the respondent is occupying the site as his principal place of residence and any agreement should be made pursuant to the Parks Act.

22.	I am satisfied that the facts in this case are different to those in Hayward and Gennaker and are more akin to those in Wilson. In Hayward and Gennaker the residents had agreements (perhaps not the correct ones) and had permission from the park owner to be occupants of the site for long periods. In this case the respondent has purchased premises under the mistaken belief that the vendor could assign to him a site agreement and the respondent has occupied the site without providing the requisite forms and information to enable the applicant to approve his occupancy which resulted in a one month agreement from the applicant, subsequently extended by the Tribunal. I realise that the applicant has been collecting rent from the respondent since September 2011 but it is also clear that the applicant has been seeking to terminate this occupation from October 2011.

23.	I am satisfied that the occupation agreement extended by the Tribunal from one month to twelve months cannot be avoided as was the case in Gennaker because of (a) the respondent’s failures to supply the information and documentation which would have given the applicant reasonable opportunity to assess his credentials, (b) the applicant only agreeing initially to a one month agreement and (c) the difference in the factual situation with Gennaker where the residents were given a long term occupation agreement (which I determined should have been a site agreement) with no attempt by the applicant to enforce the provisions of the Casual Occupation Act.

24.	I am satisfied that the agreement should be terminated. The agreement provides for termination at the end of the term if a park owner gives notice prior to the end of the term that the term is not to be extended. Because the respondent should be afforded time to remove the structures from the site I propose to determine a possession date which is two months from the date of the termination order.

25.	No evidence was given about the claim for compensation and it is dismissed.

Kim Holwell
Member
Consumer Trader & Tenancy Tribunal

25 June 2013