Chase v Clarence Valley Council; Marno v Clarence Valley Council

[2025] NSWCATCD 66

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Chase v Clarence Valley Council; Marno v Clarence Valley Council [2025] NSWCATCD 66

Hearing dates:

22 August 2025

Date of orders:

05 September 2025

Decision date:

05 September 2025

Jurisdiction:

Consumer and Commercial Division

Before:

G Sarginson, Deputy President

Decision:

(1)      The procedural orders and directions are set out at the end of this decision. A copy of the orders and directions is to be issued by the Tribunal Registry to the parties in all of the proceedings that were listed for directions at the Tribunal on 22 August 2025 separately to these reasons.

Catchwords:

CIVIL PROCEDURE- Power of Civil and Administrative Tribunal to order mediation – Large number of proceedings - Whether mediation order appropriate and if so on what terms

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Civil and Administrative Tribunal Regulation 2022 (NSW)

Civil and Administrative Tribunal Rules 2014 (NSW)

Contracts Review Act 1980 (NSW).

Holiday Parks (Long-term Casual Occupation) Act 2002 (NSW)

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW)

Local Government Act 1993 (NSW)

Local Government (Caravan Parks and Camping Grounds) Regulation 2021 (NSW)

Native Title Act 1994 (NSW)

Residential (Land Lease) Communities Act 2013 (NSW)

Residential Tenancies Act 2010 (NSW)

Work Health and Safety Act 2011 (NSW)

Work Health and Safety Regulation 2017 (NSW)

Cases Cited:

Archibald v Powlett (2017) 53 VR 645; [2017] VSCA 259

ASIC v Rich [2005] NSWSC 489

Australian Postal Corporation v Lux Cuttings Pty Ltd [2023] NSWCATAP 316

Australian Postal Corporation v Williams [2024] NSWCATAP 168

Cappello v Hammond & Simmons NSW Pty Ltd [2021] NSWCA 57

Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; [2022] HCA 16

Commonwealth v Verwayen (1990) 170 CLR 394; [1990] HCA 39

Coscuez International Pty Ltd v The Owners-Strata Plan No 46433 [2022] NSWCATAP 147

Harman v Secretary of State for Home Department [1983] 1 AC 280

Hawach v A & A Building Services Pty Ltd [2024] NSWCATAP 138

Hearne v Street (2008) 235 CLR 125; [2008] HCA 36

JL v Anglican Church Property Trust Diocese of Sydney [2017] NSWSC 1611

Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186

Moore v Scenic Tours Pty Ltd (2020) 268 CLR 326; [2020] HCA 17

Old v McInnis and Hodgkinson [2011] NSWCA 410

Promina Design & Construction Pty Ltd v The Owners-Strata Plan No 97449 [2023] NSWCATAP 252

Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Ltd [2015] NSWSC 289

Sunaust Properties Pty Ltd t/as Central Sydney Realty v The Owners-Strata Plan No 64807 [2023] NSWCA 188

The Owners-Strata Plan No 55468 v Silberstein [2025] NSWCATAP 102

Walsh v The Owners-Strata Plan No 10349 [2017] NSWCATAP 230

Young v Chief Executive Officer (Housing) (2023) 278 CLR 208; [2023] HCA 31

Texts Cited:

NCAT 2023-2024 Annual Report

Category:

Procedural rulings

Parties:

Case Number 2025/00140234
Simon Chase (Applicant)
Clarence Valley Council (Respondent)

Case Number 2025/00140385
Sue Marno (Applicant)
Clarence Valley Council (Respondent)

Representation:

Case Number 2025/00140234
Applicant (self-represented)

Solicitors:
Local Government Legal (Respondent)

Case Number 2025/00140385

Solicitors:
Thompson Geer (Applicant)
Local Government Legal (Respondent)

File Number(s):

2025/00140234 and 2025/00140385

Publication restriction:

Nil

REASONS FOR DECISION

1. This is a procedural decision arising from a directions hearing on 22 August 2025.

2. As the dispute involves a large number of parties (who are involved in separate proceedings) and the profile of the dispute, I have determined it appropriate to publish reasons for my procedural directions. Although only Mr Chase and Ms Marno have been identified as applicants on the cover page of the reasons, the orders apply to all of the matters listed for directions on 22 August 2025.

3. I have conducted the directions hearings in the proceedings to date. The purpose is to case manage a large number of proceedings. However, my case management to date does not mean I will necessarily be conducting the final hearings in the proceedings (if they do not resolve); nor any mediations.

4. In this decision, any reference to “casual occupants” is a reference to the applicants in matters where it has been identified by the applicants that the Holiday Parks (Long-term Casual Occupation) Act 2002 (NSW) (HP Act) applies rather than the Residential (Land Lease) Communities Act 2013 (NSW) (RLLC Act).

Introduction

5. The respondent in the proceedings, Clarence Valley Council (‘the Council’), is the operator of 4 holiday parks, which are often colloquially referred to as ‘caravan parks’.

6. The legislation applicable to occupants of such parks is usually the RLLC Act or HP Act.

Differences Between the RLLC Act and the HP Act

7. It is unnecessary to set out in detail the differences between the RLLC Act and the HP Act. However, it is useful to understand the major provisions of the respective Acts.

8. The RLLC Act applies to communities (as defined in s 4 of the RLLC Act) where there is a site agreement between the home owner (as defined in s 4 of the RLLC Act) and the operator where the home owner uses the site only as a place of residence (s 36(a) of the RLLC Act). There are provisions of the RLLC Act dealing with sale of homes; formation of residents committees; site fee increases; and termination of agreements. Termination notices can only be issued by the operator on certain grounds, but an application can be made to terminate for serious misconduct without issue of a termination notice (Part 11, Divisions 1-3 of the RLLC Act). Termination by the operator occurs by order of the Tribunal if the home owner does not vacate (s 130 of the RLLC Act). There are provisions of the RLLC Act dealing with mediation, including the provisions in Part 12 Division 2 of the RLLC Act.

9. In respect of the order making power of the Tribunal under the RLLC Act (separately to other order making powers, such as orders for termination and possession that are set out in ss 130-131), s 157 states as follows:

157   Orders that may be made by Tribunal

(1)  The Tribunal may, on application by a party to a dispute or other matter before the Tribunal, or in any proceedings under this Act, make one or more of the following orders—

(a)  an order that restrains an action in breach of this Act or a site agreement or collateral agreement,

(b)  an order that requires a person to comply with an obligation under this Act or a site agreement or collateral agreement,

(c)  an order that relieves a party to a site agreement or collateral agreement from the obligation to comply with a provision of the agreement,

(d)  an order for the payment of an amount of money,

(e)  an order for the payment of compensation,

(f)  an order that a party to a site agreement perform such work or take such other steps as the order specifies to remedy a breach of the agreement,

(g)  an order that requires payment of part or all of the site fees payable under a site agreement to the Tribunal until the whole or part of the agreement has been performed or any application for compensation has been determined,

(h)  an order that requires site fees paid to the Tribunal to be paid towards the cost of remedying a breach of the site agreement or towards the amount of any compensation,

(i)  an order directing an operator to give a former home owner or person authorised by a former home owner access to a residential site or home on the site for the purpose of recovering goods of the former home owner,

(j)  an order for anything else necessary or desirable to resolve a dispute.

(2)  An order under subsection (1)(a) or (b) may be made even though it provides a remedy in the nature of an injunction or order for specific performance in circumstances in which such a remedy would not otherwise be available.

(3)  The Tribunal must not make an order for—

(a)  the payment of an amount that exceeds the amount (if any) prescribed by the regulations for the purposes of this section, or

(b)  the performance of work or the taking of steps the cost of which is likely to or will exceed the amount (if any) prescribed by the regulations for the purposes of this section.

(4)  An order for the payment of compensation to a party is not to be made for loss or damage to the extent the loss or damage could have been avoided or limited by taking reasonable steps to mitigate the loss or damage.

(5)  A provision of this Act that enables a resident to apply for a determination by the Tribunal and the Tribunal to determine a matter or make an order also applies, where appropriate, to a former resident.

(6)  The Tribunal does not have jurisdiction to award compensation for damages arising from personal injury.

(7)  Except as provided by subsection (6), nothing in this section limits the orders that the Tribunal may make under this Act.

Note.

This Act also confers other order-making powers on the Tribunal, including other specific powers to make termination orders and to declare that a residential site has been abandoned.

10. The HP Act applies to the following:

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.

(2)  This Act applies whether the relevant occupation agreement was entered into before or after the commencement of this section, unless a particular provision provides otherwise.

(3)  Subject to sections 14 and 16, if this Act applies to an occupation agreement, it so applies despite the terms of any such occupation agreement or any other contract, agreement or arrangement, whether made before or after the commencement of this section.

11. Under the HP Act, a park owner who proposes to enter into a site agreement must provide a document that answers specific questions (s 9 HP Act). The HP Act requires a signed written agreement (ss 5 and 15 of the HP Act) but oral agreements, or agreements that are partially in writing and partially oral are still enforceable (ss 13, 15, 16 of the HP Act). There are certain standard terms incorporated into the agreement (ss 11 and 15; Sch. 1 of the HP Act).

12. Schedule 1 of the HP Act contains extensive terms. They deal with obligations of occupants and park owners. Sch. 1 Cl. 6 states:

6   What happens when this agreement ends?

When the time for this agreement ends—

(a)  the occupant can stay on the site at the same occupation fee (or at an increased fee if the fee is increased in accordance with this agreement) and otherwise under the same terms unless or until this agreement is ended in accordance with this agreement, or

…

13. Sch. 1 includes obligations by the occupant that movable dwellings must comply with the law; and must be kept in a condition allowing it to be moved (Cl. 25-26). The occupant agrees not to sell the moveable dwelling while it is on site without prior written permission of the park owner or order of the Tribunal (Cl. 23). The occupant agrees not to renovate or alter the moveable dwelling on site without the park owner’s prior written permission. The park owners obligations are set out in Sch. 1 Cl. 27-31, including a family member or another person to temporarily occupy the site if the person has the prior consent of the occupant and the park owner (Cl. 31).

14. Under Sch. 1 Cl. 39, the park owner may issue a notice of termination for breach of the agreement by the occupant. Under Sch. 1 Cl. 40, the park owner may give a notice of termination without any breach. Clause 40 states as follows:

40   Notice of termination by park owner without any reason (but not for a fixed term agreement that has not finished)

(1)  The park owner and the occupant agree that the park owner may give notice of termination of this agreement without having to give any reason.

(2)  The park owner and the occupant agree that a notice of termination given under this clause must give at least 90 days’ notice as to the day on which vacant possession of the site will be delivered up to the park owner.

(3)  This clause does not apply if the agreement creates an occupancy for a fixed term and the notice of termination specifies that it takes effect before that term finishes.

15. Clauses 40 and 41 specify the details that must be contained in a notice to terminate (Cl. 40) and how the notice may be served (Cl. 41). There are also service provisions in s 47 of the HP Act.

16. In respect of fixed term agreements, s 18 of the HP Act states:

18   Fixed term agreement may specify that it continues

If an occupation agreement that creates an occupancy for a fixed term includes a provision for its continuation after the fixed term ends, that provision has effect

17. A park owner or occupant may terminate the agreement when the fixed term ends (s 19 of the HP Act). However, if there is no termination of the agreement and the fixed term ends, s 20 of the HP Act states:

20   Continuation of fixed term agreements if park owner or occupant does not terminate

(1)  This section applies if—

(a)  an occupation agreement creates an occupancy for a fixed term, and

(b)  the occupation agreement has no provision in it for continuation after the fixed term ends, and

(c)  neither the park owner nor the occupant has terminated the occupation agreement when the fixed term ends.

(2)  An occupation agreement to which this section applies is to continue to apply on the same terms as those applying immediately before the day on which the fixed term ends, other than the term that set the fixed term for the agreement and the term fixing the amount of the occupation fee.

(3)  The occupation agreement continues on the basis that the occupant is holding over under a periodic occupancy, that is, on the basis that the occupation fee is paid and accepted at regular fixed intervals and the occupancy of the occupant continues indefinitely from one period to the next until terminated by notice equal to the length of the applicable period.

18. Section 46A of the HP contains a penalty if the park owner gives, “in purported compliance with any requirements of this Act”, any information which the park owner knows is false or misleading in a material particular. Section 49 prohibits contracting out of the HP Act. Section 50 states that nothing in the Act limits the operation of the Contracts Review Act 1980 (NSW).

19. Under s 28 of the HP Act, a park owner can recover possession of the site or the occupation agreement without the need to obtain an order of the Tribunal. However, if it does so unlawfully, s 29 of the HP Act provides for a penalty, and under s 29(3) the potential for compensation to the innocent party. Section 30 provides that if the Tribunal makes an order for termination, it may subsequently issue a warrant for possession.

20. Section 26 and 27 of the HP Act deal with applications to the Tribunal and orders that the Tribunal can make. They state as follows:

26   Applications to the Tribunal relating to a breach of an occupation agreement or to a disagreement

(1)  If—

(a)  a park owner or an occupant under an occupation agreement claims that a breach of a term of the agreement has occurred, or

(b)  a disagreement occurs between a park owner and an occupant concerning a matter that could form the basis of a breach of the occupation agreement (other than an increase in the occupation fee or any other matter of a kind prescribed by the regulations),

the park owner or the occupant may, not later than 30 days after becoming aware of the breach or the disagreement, apply to the Tribunal for an order in respect of the breach or disagreement.

(2)    (Repealed)

(3)  An application under this section may be made during the currency of or within 30 days after the termination of an occupation agreement. In addition, an application may be made whether or not the occupation agreement was executed.

27   What orders can the Tribunal make?

(1)  The Tribunal may, on application by a person under section 26, make one or more of the following orders—

(a)  an order that—

(i)  restrains any action in breach of the occupation agreement or the cause of the disagreement, or

(ii)  requires any action in performance of the agreement or to resolve the disagreement,

(b)  an order for the payment of an amount of money,

(c)  an order that the park owner give the occupant the correct notice of termination of the occupation agreement,

(d)  an order that a party to the occupation agreement perform any work or take any other steps that the order specifies to remedy a breach of the agreement or to resolve the disagreement,

(e)  an order as to compensation, including (without limiting the Tribunal’s power to make such an order)—

(i)  compensation for loss of occupation fees, and

(ii)  compensation where a park owner withholds or refuses consent to the removal of any fixture owned by the occupant, and

(iii)  compensation for any other breach of the occupation agreement or for any other loss,

(f)  an order terminating the occupation agreement and an order for possession of the site.

(2)  An order under subsection (1) (a) may be made even though it provides a remedy in the nature of an injunction or order for specific performance in circumstances in which such a remedy would not otherwise be available.

21. The time period in s 26 of the HP Act can be extended under s 48 of the HP Act, and s 41 of the NCAT Act.

Factual Background

22. For some applicants, the van or dwelling is their permanent residence. For others, the van or dwelling is occupied on a casual basis and is not their permanent residence.

23. The parks are located at Minnie Water; Brooms Head; Iluka; and Wooli.

24. On 13 March 2025, the Council issued Notices to Terminate site agreements on approximately 130 van owners in the parks. The Notices required vacant possession on 30 June 2025.

25. Other events then occurred, including media interest in the dispute and discussions at Council meetings. A number of van owners formed the Clarence Valley Semi-Permanent Van Group Incorporated. Mr Chase is the Secretary of this group.

Proceedings in the Tribunal and Directions of the Tribunal

26. Commencing in April 2025, a large number of van owners commenced proceedings in the Tribunal. There are currently approximately 100 proceedings before the Tribunal.

27. Leave for representation has been granted to the parties under s 45 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). In a small number of matters, the applicants are legally represented by Legal Aid NSW. In one matter (where Ms Marno is the applicant) the applicant is legally represented by Thomson Geer Solicitors. In one matter (Bradfield and Lawrence) the applicants are self-represented, with Mr Bradfield appearing. In the majority of matters, the applicants are represented by Mr Chase.

28. The matters were listed for a directions hearing on 14 May 2025.

Directions Hearing on 14 May 2025

29. At that stage, there were approximately 63 proceedings, but that figure has now grown.

30. On 14 May 2025 procedural directions were made. The applicants were directed to file and serve Points of Claim. The parties were also directed, by their representatives, to confer and discuss whether alternative dispute resolution was feasible. Parties were encouraged to obtain legal advice.

31. At the directions hearing, one of the issues I pointed out was that the Tribunal only has jurisdiction conferred upon it by statute (ss 28 and 29 of the NCAT Act) and the jurisdiction of the Tribunal is not unlimited.

29. It is unnecessary for the purpose of this decision to set out in detail the many authorities that discuss the scope of the Tribunal’s jurisdiction under the plethora of legislation that confers powers upon it (for example, Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186 in respect of consumer claims; The Owners-Strata Plan No 55468 v Silberstein [2025] NSWCATAP 102 and Coscuez International Pty Ltd v The Owners-Strata Plan No 46433 [2022] NSWCATAP 147 at [133] in respect of strata disputes). In strata matters, the Tribunal does not have the general power to grant the remedy of a declaration, unless there is a specific statutory power (Walsh v The Owners-Strata Plan No 10349 [2017] NSWCATAP 230).

30. The Tribunal does not have jurisdiction to consider purely equitable causes of action, although it has jurisdiction to consider equitable defences: Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Ltd [2015] NSWSC 289 at [67] and [74]; Hawach v A & A Building Services Pty Ltd [2024] NSWCATAP 138 at [96]-[97]. It also does not have jurisdiction to consider claims or defences raised under Commonwealth legislation if the claim or defence is genuinely raised and not incapable on its face of legal argument: Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; [2022] HCA 16; Australian Postal Corporation v Lux Cuttings Pty Ltd [2023] NSWCATAP 316; Australian Postal Corporation v Williams [2024] NSWCATAP 168. In appropriate circumstances, the Tribunal can transfer proceedings to a Court (Sch. 4 Cl. 6 of the NCAT Act).

31. The reason I raised the issue of jurisdiction is that, in correspondence Mr Chase had sent to the Tribunal and the Council, he had raised alleged breaches of local government planning legislation; work, health and safety legislation, and native title legislation as a basis for asserting that the Notices of Termination issued by the Council were invalid. It was also unclear that the orders he (and the applicants he represents) were seeking were within the powers of the Tribunal under the RLLC Act or HP Act.

32. The Points of Claim were to set out:

1. The orders sought.

2. The legislation that the Tribunal has the power to consider that is relied upon.

3. Brief details of why the orders should be made.

36. Further, the Tribunal noted the undertaking of the Council that it would not seek to take possession of the sites in respect of which Notices to Terminate had been issued without further order of the Tribunal or a Court. Directions were also made granting the parties liberty to approach the Tribunal if the Council sought to be relieved of the undertaking.

37. On about 19 June 2025, Mr Chase filed and served Points of Claim. The Points of Claim sought 9 orders. Those orders are summarised as follows:

1. That the Notices to Terminate “be set aside and declared to have no effect”.

2. All “existing agreements” continue “in full force and effect according to their terms as they stood immediately prior to the issue of the Notices to Terminate”.

3. All “enforcement actions” be immediately suspended.

4. The Council be “restrained from undertaking any further compliance or enforcement activity” which may “prejudice the rights or interests” of the van owners who had taken NCAT proceedings.

5. The Council be “restrained from issuing any further notices, warnings or actions in relation to alleged non-compliance where such alleged non-compliance arises from, or is attributable to, prior approvals or omissions by the Council or its predecessors”.

6. A declaration made that the conduct of the Council was “unlawful” and/or “in breach of its statutory obligations” in respect of “historic approvals or regulatory inaction”.

7. The Council be ordered to “bear the cost of any lawful rectification works required to address non-compliance”.

8. An unspecified amount of “compensation” be awarded to the van owners for “economic loss”.

9. An order allowing the existing HP Act van owners to “stay on the site, at the same occupation fee (or an increased fee if the fee is increased in accordance with this agreement)…until this agreement is ended…”

38. Mr Chase’s Points of Claim set out “brief grounds for orders” and “submissions” that run for a number of pages. He refers to a resolution passed by the Council at a meeting on 11 April 2025 that the Council would withdraw the Notices to Terminate and enter into new long term casual occupation agreements, and would consider formulation of Plans of Management under local government legislation with “the full involvement of traditional owners in accordance with the Native Title Act 1993”. Mr Chase asserts that the General Manager of the Council refuses to accept that resolution and implement it.

39. The Points of Claim then assert a series of purported breaches by the Council of the local government legislation (including the Local Government Act 1993 (NSW)); the Local Government (Caravan Parks and Camping Grounds) Regulation 2021 (NSW)); the Crown Land Management Act 2016 (NSW); Native Title legislation (Native Title Act 1994 (NSW)); and work, health and safety legislation (Work Health and Safety Act 2011 (NSW) and Work Health and Safety Regulation 2017 (NSW)).

40. Included in the Points of Claim (and submissions) is an assertion that the Council “has been aware for up to 9 years” that occupancy agreements would be terminated, but continued to permit the sale and purchase of vans located on sites at the parks; and encouraged or required van owners to invest in “substantial and costly adjustments” to their vans to comply with planning and compliance requirements, many of whom made the vans “effectively unmovable”.

41. Mr Chase’s initial Points of Claim are broad, and some of the issues and legislation raised does not clearly fall within the scope of the HP Act. He does not plead that his agreement falls under the RLLC Act.

Directions Hearing on 23 June 2025

42. On 23 June 2025, the proceedings were again listed for a directions hearing. The Tribunal made extensive procedural directions comprising of 4 pages. It is unnecessary to set out in detail those procedural directions. However, in summary, the parties were to identify (set out in direction 4):

1. Matters in which the applicant alleged they were permanently residing in the van and the RLLC Act arguably applies.

2. Matters in which the applicants were not permanently residing in the van and agreed the HP Act arguably applies.

3. Matters in which the applicant sought to remain in possession of the site permanently (subject to any future lawful right of the respondent to terminate).

4. Matters in which the applicant sought a further long term casual agreement under s 5 of the HP Act.

5. Matters in which compensation orders were sought.

6. Matters where the parties agreed to a mediation.

7. Matters where the parties did not agree to a mediation, and if so, why.

8. If mediation was ordered, whether the mediation should be conducted by a private Mediator or Member of the Tribunal appointed as a Mediator under Sch 1 of the Civil and Administrative Tribunal Regulation 2022 (NSW) (NCAT Regulation).

9. Details of how any mediation would be conducted, considering the large number of proceedings. Such details included whether the mediation would be in person or by audio-visual link and how much time would be allocated to each matter.

10. The applicants to file and serve any Amended Points of Claim (APOC). Any APOC must set out:

1. The orders sought (including, if compensation is sought, the amount of compensation and the legal basis for compensation).

2. The statutory provisions relied upon.

3. Details of why the orders were sought.

4. An explanation as to how the Tribunal has the power to make the orders sought under the provisions of the RLLC Act or HP Act, or any other legislation to which the Tribunal has power to apply.

43. It was also noted that there had been a dispute regarding Mr Chase issuing a Summons to Produce Documents to the Council. Mr Chase had applied for a Summons, but a Tribunal Registry officer determined not to issue the Summons, for reasons that do not require elaboration. The procedural directions identified that Mr Chase could either make an application to issue a fresh Summons, or if he chose to press on with the Summons that had been refused, he could make a miscellaneous orders application for the issue of the Summons, to be referred to me.

44. The procedural directions also identified that if a fresh Summons was issued and the Council sought to have that Summons set aside in whole or part, the Council could file and serve a miscellaneous orders application.

Procedural Events Prior to the Directions Hearing on 22 August 2025

45. The representatives of the parties conferred and prepared an extensive spreadsheet that dealt with all of the issues raised by direction 4 of the Tribunal. The representatives of the majority of the van owners (Legal Aid NSW; Thompson Geer and Mr Chase) prepared a document, and the Solicitors for the Council prepared a separate document in respect of matters where it was asserted the HP Act applied, rather than the RLLC Act.

46. There were a small number of matters where both parties agreed to hold a mediation with a private mediator selected from the Law Society of NSW as a first step to resolving the dispute. In most of those matters, the applicant is legally represented by Legal Aid NSW. In those matters, the applicant is permanently residing in the van.

47. In the matters where both parties agree to a private mediation, I have determined it appropriate to make an order under s 37 of the NCAT Act that the parties hold a mediation before a private mediator, and then those matters be listed for a further directions hearing not earlier than 8 weeks from the date of this decision. There are 13 matters that fall into that category.

Mr Chase’s Amended Points of Claim

48. On 24 July 2025, Mr Chase filed and served a document that he relies upon as Amended Points of Claim. He asserted at the directions hearing on 22 August 2024 that this document is also the Amended Points of Claim in all of the proceedings where he represents the applicants.

49. As I pointed out at the directions hearing on 22 August 2025, there is no ‘representative’ or ‘class action’ type of proceedings involving this type of dispute in the Tribunal. It is also problematic that, at this stage, there is no signed document from the applicants that Mr Chase represents to state that they agree to, adopt, and rely upon the Amended Points of Claim that Mr Chase has prepared and relies upon.

50. The Amended Points of Claim (APOC) seek the following orders:

1. The current termination notices issued to 136 van owners at Wooli, Brooms Head, Minnie Water and Iluka “are invalid”.

2. The park owner “withdraw” the current notices of termination.

3. The park owner be “restrained from taking possession of the sites without further or other order of the Tribunal or a Court”.

4. The park owner “fully comply with the requirements of all sections/clauses pursuant to Schedule 1 of the Holiday Park Act (sic) and the Occupation Agreement”.

5. The park owner “namely the General Manager, the person in authority partake in mediation with the applicants to resolve the disagreement”.

6. The park owner “pay all applicants compensation for breaches of the occupation agreement and for any financial losses, costs, detriment and harm suffered”.

51. Pursuant to the previous directions of the Tribunal, the document then sets out how it is said the Tribunal has the power to make the orders sought.

52. Mr Chase refers to Cl. 7 of Sch 1 of the HP Act (that the park owner and occupant agree to comply with the terms of the agreement) and ss 26 and 27 of the HP Act. In particular, he refers to s 26(1)(b) of the HP Act, which refers to “a disagreement…between a park owner and occupant concerning a matter that could form the basis of a breach of the occupation agreement…”

53. Mr Chase makes the following assertion:

“The grounds raised by the applicants are many and varied and the following grounds raise an argument that Council has failed to comply with several requirements of legislation under the Holiday Parks Act and have breached the terms of the Occupation Agreement which the applicants disagree with. This falls within NCAT’s jurisdiction under s 26 of the Holiday Parks Act”.

54. The APOC refers to statutory interpretation principles, on the basis that it is submitted the HP Act is beneficial legislation that should be given a broad interpretation in favour of van owners.

55. The APOC sets out the specific provisions of the HP Act and occupation agreement it is asserted have been breached by the Council. They are as follows:

56. Section 9 of the HP Act. Mr Chase asserts that “many” of the applicants did not receive a written occupation agreement, or a document required by s 9 of the HP Act prior to entering into the agreement.

57. Section 10 of the HP Act and Sch. 1 Cl. 34. Mr Chase asserts “many” of the applicants did not receive a copy of the park rules before entering into a site agreement.

58. Section 11 of the HP Act. Mr Chase asserts that “many” applicants did not have the “blank spaces” of the site agreement (that contains any additional terms other than the terms set out in Sch. 1) filled out.

59. Section 12 of the HP Act. Mr Chase asserts that “many” applicants were not provided with a copy of any site agreement and “despite attempts to obtain a copy from park managers and council (sic) no written or oral agreement can be located on file and no record exists of it ever being in place”. He further submits that “the absence of any occupation agreement as require is in breach and occupants cannot be expected to be bound by terms never disclosed to them”.

60. Section 15 of the HP Act. Mr Chase identifies that failure to provide a complete written occupation agreement to the occupant is a penalty offence. It is further submitted that “many” applicants were not provided with the disclosure document; the park rules and Sch. 1 of the HP Act “at no time before, during or after” entering into the site agreement.

61. Section 18 of the HP Act. Mr Chase asserts “if” applicants have a fixed term agreement of 12 months and “if” the term of the agreement states the agreement can continue “otherwise under the same terms unless and until this agreement is ended in accordance with this agreement” then there is “in effect an automatic extension on the same terms” (i.e. the agreement remains a fixed term agreement) so the Notice to Terminate has “no effect” because it was issued within the fixed term period.

62. Sch. 1 Cl. 41 of the HP Act. Mr Chase asserts that by reason of Sch. 1 Cl. 41(b) the notice of termination must state the address and site number of the site. He asserts that termination notices issued by the Council only contain reference to the site number, and omit the address. Accordingly, he submits the notices are invalid.

63. Sch. 1 Cl. 46A of the HP Act. Mr Chase asserts that the Council knew, or ought to have known, when it entered into site agreements or renewed site agreements that sites were not “lawfully usable as a residential site” due to being “situated on a road reserve, not within the approved caravan park area”; or “the site and structures breach applicable Local Government Regulations”. Mr Chase asserts that the Council “allowed or approved the construction of structural additions such as annexes, carports and decks, that rendered the dwelling immovable, further undermining the assumption of mobility”. The Council then issued a termination notice “relying on the assumption that the dwelling could be relocated”.

64. Sch. 1 Cl. 27(b) of the HP Act. Mr Chase asserts the Council has failed to ensure that there was no legal reason the site could not be used as a residence for the term of the agreement.

65. Section 46A of the HP Act. Mr Chase asserts that the Council engaged in misleading or deceptive conduct; and/or conduct that was harsh, unconscionable or oppressive, because the Council allowed or encouraged site occupants to alter and modify their vans, despite knowing “for at least 9 years” that termination of occupancy agreements was under “active consideration”. It is asserted the Council permitted the sale or transfer of vans and entered into new site agreements but “withheld” information regarding the “likely or foreseeable termination of those agreements”.

66. Mr Chase asserts that applicants have suffered “economic loss, stress and hardship” because of (a) loss of value of vans; (b) inability to sell or relocate; and (b) costs associated with “defending the termination”. It is asserted that the Council allowed applicants to alter their vans with “additions such as an annex, carport, decking and plumbing” which made the van immovable.

67. Sch. 1 Cl. 3 of the HP Act. Mr Chase asserts the dimensions (width and depth) of the site were not set out in site agreements.

68. Sch. 1 Cl. 5 of the HP Act. Mr Chase repeats his assertion that the occupation agreements are ongoing fixed term agreements and, accordingly, the notices to terminate are invalid.

69. Sch. 1 Cl. 6 of the HP Act. Mr Chase asserts that the Council “resolved to withdraw the termination notices” and the General Manager did not have the delegated power to terminate, or press for termination, of the site agreements.

70. Sch. 1 Cl. 8 of the HP Act. Mr Chase asserts that the Council has charged occupation fees that have not been set out in the agreements.

71. The APOC concludes with a sub-heading “Compensation”. That sub-heading contains a narrative. It does not specify what amounts are claimed by the particular casual occupants. Mr Chase assert that the Council has previously “negotiated and paid” compensation when causal occupants were “relocated” and by issuing the notices to terminate, the Council has departed from a “precedent” previously established. It is asserted that many casual occupants are “elderly” and “vulnerable”.

72. The APOC acknowledges that Sch. 1 Cl. 45 of the HP Act states no compensation is payable for termination of the occupation agreement. However, Mr Chase asserts that applicants seek “compensation for market value loss of each van and compensation for any losses or costs and harm incurred by failing to comply with law and because of improper termination procedures”.

Ms Marno’s Amended Application With Points of Claim

73. Ms Marno is a casual occupant of the Illuka park (as is Mr Chase).

74. She is represented by Thompson Geer Solicitors in the proceedings.

75. On 25 July 2025, an amended application with Points of Claim was filed and served.

76. Ms Marno seeks the following orders:

1. The Council pay compensation due to breach of Cl. 23 of the site agreement “in the range of $140,000-$180,000” (s 27(1)(e)(iii) and 27(1)(b) of the HP Act).

2. The termination notice dated 13 March 2025 be set aside or the Council be “restrained” from acting upon it (s 27(1)(a)(i) of the HP Act) or in the alternative:

1. A declaration that the termination notice has no effect, and which “restrains” the Council taking action which is the cause of the disagreement (s 27(1)(a)(ii) of the HP Act).

3. The Council be “required” to offer the applicant a “continuing occupation agreement for a further reasonable fixed term period of 12 months in accordance with Clause 6 of the Agreement dated 21 November 2016” (s 27(1)(a)(ii) HP Act).

4. The Council be “restrained” from issuing any further notices to terminate “without reason” in the period of the next fixed term (s 27(1)(a)(i) HP Act).

77. Ms Marno asserts that her husband and another family member entered into a site agreement with the Council on 21 November 2016. Ms Marno and her husband had occupied the site for many years. Ms Marno’s husband (and the other family member who entered into the original agreement) have passed away. Ms Marno believes that she has inherited the rights of her husband under the agreement. Between January 2018 and March 2023 her husband invested significant monies in respect of improvements to the van and site.

78. On 8 July 2024, Ms Marno asserts she entered into an “Annual Site Agreement Renewal” for the period 1 July 2024 to 30 June 2025.

77. In October 2024, Ms Marno asserts that a purchaser for the van had been identified, and in October 2024 she sought permission of the Council to sell the van. At this time, she had a market appraisal of the value of the van and site. The appraisal valued the van at approximately $160,000 to $180,000.

78. According to Ms Marno, in December 2024 the Council indicated that they would approve the sale, and she continued to take measures to facilitate the sale. However, the sale was not approved prior to the Council issuing the notice to terminate. The Council has subsequently asserted that it would not pay any compensation to Ms Marno and has only offered to remove the van on the basis that Ms Marno vacates the site.

79. Like Mr Chase, Ms Marno asserts that by reason of the operation of ss 18 and Sch. 1 Cl. 6 of the HP Act, the original fixed term agreement continues as a “repeated 12 months agreement” if it is not terminated according to its terms and accordingly the Council had no power to issue the notice to terminate in March 2025 as the notice was issued during the fixed term.

Summons to Produce Documents on the Council Issued by Mr Chase and Ms Marno

82. Both Ms Marno and Mr Chase have issued a Summons to Produce Documents on the Council. Mr Chase’s Summons is a second Summons that has been accepted and filed by the Tribunal Registry, and has been served on the Council.

83. The Council has informally produced documents in respect of Ms Marno’s Summons.

84. On 7 August 2025, a Solicitor from Thomson Geer emailed the Tribunal stating that the legal representatives of Ms Marno seeking leave of the Tribunal to “share” the documents produced with the other applicants, including information about what documents had not been produced.

85. Regrettably, that email was not copied to the Solicitor for the Council, and at the directions hearing on 22 August 2025, the Solicitor for the Council (Ms Caban) stated that she was unaware of the correspondence and application for an interlocutory order until it was orally raised at the directions hearing.

86. As will be discussed later in this decision, I have made procedural orders to deal with the application by Ms Marno’s Solicitors, which involves the principles that arise from Harman v Secretary of State for Home Department [1983] 1 AC 280 (see also Hearne v Street (2008) 235 CLR 125; [2008] HCA 36).

87. In the future, it is important that legally represented parties comply with their obligations regarding communications with the Tribunal and their opponents under Reg. 22.5 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW). By reason of ss 36 and 38 of the NCAT Act, it is also usually inappropriate for non-legally represented parties to send correspondence to the Tribunal Registry without providing a copy of that correspondence to the representative of the other party. Exceptions may be urgent ex parte applications and applications under s 64 of the NCAT Act, but those issues do not currently arise in these proceedings.

88. In respect of Mr Chase’s Summons, on 31 July 2025 the Solicitors for the respondent filed a miscellaneous orders application with written submission seeking to have the Summons set aside, on the basis it lacked a legitimate forensic purpose. At the directions hearing on 22 August 2025 (the date of the return of the Summons) Mr Chase asserted he had not been served with a copy of the miscellaneous orders application and the submissions. It is unnecessary to repeat what I have said in the previous paragraph. Later in this decision, I have made procedural directions to deal with the application to set aside the Summons.

Directions Hearing on 22 August 2025

89. As with previous directions hearings, the matters were grouped according to the particular caravan park, with lists at 9.15 am (Minnie Waters matters); 11.15 am (Brooms Head matters); 1.15 pm (Wooli matters) and 2.15 pm (Illuka matters).

90. Mr Chase and Ms Caban (Solicitor for the Council) appeared in all of the lists. Solicitors from Legal Aid NSW (Ms Hyde and Mr Blaxland) appeared in some lists. Ms Mulherin and her colleague Ms Sunarko appeared for Ms Marno in the 2.15 pm list.

91. One party in the 9.15 am list was self-represented (Mr Bradfield). Mr Bradfied’s matter was not a matter where the Council agreed to mediation.

Mediation of the Matters to Which the HP Act Applies

92. As discussed previously, the parties in the matters where the van is the permanent residence of the applicant (i.e. it is arguable the RLLC Act applies rather than the HP Act) have agreed to a private mediation to attempt to resolve the dispute. That mediation will be conducted by a private mediator, selected by the parties from the list of mediators held by the Law Society of NSW.

93. However, that does not deal with the vast majority of the proceedings.

94. In those matters, the applicants are asserting that the HP Act applies and accordingly appear to accept that their agreements are casual occupancy agreements.

95. There are approximately 90 matters to which it is asserted the HP Act applies.

96. In respect of mediation, the positions of the parties are summarised as follows:

Respondent

97. The Council opposes the HP Act matters being listed for a mediation. The basis for the opposition is that there is no prospect of resolution in circumstances where the applicants seek a further occupancy agreement, and the Council is not prepared to offer one. However, if a mediation is ordered by the Tribunal, the Council asserts it should be a privately organized mediation before a mediator selected from the Law Society of NSW panel of mediators. The parties should contribute equally to the costs of the mediation. The Council opposes the General Manager personally attending the mediation because (a) there is no power to order a particular person to attend a mediation; and (b) the applicants’ animosity towards the general manager will not produce a successful mediation in any event.

Applicants

98. Mr Chase and the Solicitors for Ms Marno submit that there should be a mediation in all the HP Act matters. That mediation should be before a Member of the Tribunal, rather than a private mediator. Mr Chase submits that many of the applicants are of limited financial means and cannot afford to contribute towards the cost of a private mediator.

99. Mr Chase submits that it is essential the General Manager be ordered by the Tribunal to attend the mediation personally. The basis of this submission was elaborated upon at the directions hearing on 22 August 2025. According to Mr Chase, the applicants have not “had the opportunity to be heard” about the decision to terminate the occupancy agreements, and have been “shut out”.

The Tribunal’s Power to Order Mediation

100. Section 37 of the NCAT Act states as follows:

37   Tribunal to promote use of resolution processes

(1)  The Tribunal may, where it considers it appropriate, use (or require parties to proceedings to use) any one or more resolution processes.

Note.

See section 59 for the power of the Tribunal to give effect to a settlement reached by the parties following the use of a resolution process.

(2)  A resolution process is any process (including, for example, alternative dispute resolution) in which parties to proceedings are assisted to resolve or narrow the issues between them in the proceedings.

101. In respect of the power of the Tribunal to make other orders to facilitate the performance of a mediation, Section 58 of the NCAT Act states as follows:

58   Power to impose conditions

A power of the Tribunal to make an order or other decision includes a power to make the order or other decision subject to such conditions (including exemptions) as the Tribunal specifies when making the order or other decision.

102. The Tribunal’s powers under s 37 of the NCAT Act are broad, and must be considered in conjunction with:

1. The ‘guiding principle’ of the Tribunal under s 36(1) of the NCAT Act that the practice and procedure of the Tribunal be focussed upon the just, quick and cheap resolution of the real issues in the proceedings; and

2. The obligation of parties and legal practitioners under s 36(3) to co-operate with the Tribunal to give effect to the guiding principle.

103. The power under s 37 of the NCAT Act in the Consumer and Commercial Division includes parties being directed to conciliate at the Tribunal; and for Tribunal Members to conciliate from the Bench in appropriate circumstances (NCAT Consumer and Commercial Division Guideline August 2017-’Conciliation and hearing by the same Member’).

104. However, mediation is a more formal and structured informal dispute resolution process than conciliation. The Tribunal’s power to conduct a mediation facilitated by a Member of the Tribunal (or Registrar, or other person that the Tribunal regards as appropriate) is contained in Sch. 1 of the Civil and Administrative Tribunal Regulation 2022 (NSW) (NCAT Regulation).

105. Briefly, the provisions in Sch. 1 of the NCAT Regulation provide that:

1. Parties who have been referred to mediation have a duty to participate in good faith (Sch. 1 Cl. 7 NCAT Regulation).

2. The cost of mediation is to be borne by the parties in proportions agreed between themselves or, in the absence of agreement, as ordered by the Tribunal unless the Tribunal determines to bear the cost itself (Sch. 1 Cl. 8 NCAT Regulation).

3. The Tribunal may make orders to give effect to any agreement reached at mediation (Sch. 1 Cl. 9 NCAT Regulation).

4. Privilege applies in respect of the mediation, and documents created for the purpose of the mediation (Sch. 1 Cl. 10 NCAT Regulation).

5. The circumstances in which the mediation can disclose information is set out in Sch. 1 Cl. 11 of the NCAT Regulation.

6. The mediator may, by order, give direction regarding the preparation and conduct of the mediation (Sch. 1 Cl. 11 of the NCAT Regulation).

Analysis of the Costs and Benefits of a Mediation

106. The benefits of alternative dispute resolution are well established. Parties often become involved in litigation without understanding, or being prepared to acknowledge and confront, the risks and the costs. Expectations may be inflated and unrealistic.

107. The uncertainty of litigation was encapsulated by Beazley JA in Old v McInnis and Hodgkinson [2011] NSWCA 410 at [6]:

“Litigation is not a process for the faint hearted. It is a costly and time consuming process and usually productive of stress, all of which, of their nature, have adverse effects upon those involved in the process. In some, if not most, cases that come before the courts, it is a necessary evil.”

108. In respect of parties who believe that mediation will serve no purpose because the parties are ‘too far apart’, Austin J stated in ASIC v Rich [2005] NSWSC 489 at [16]:

“In my opinion, this combination of consumption of time, escalating costs and strain on the Court’s resources provides an ample basis for the Court to exercise its power of mandatory mediation. The making of a mediation order may provide the opportunity for the parties to take stock of their positions away from the battleground of the courtroom. An independent mediator should be able to encourage the parties to look at the issues from a different perspective and in a different light, and mediation may provide the occasion for the parties to obtain advice from a broader range of sources than the specifically legal sources used in litigation.”

109. Mediation can be ordered at an early stage of proceedings. In JL v Anglican Church Property Trust Diocese of Sydney [2017] NSWSC 1611, Schmidt J stated at [2]-[6]:

“There is no issue between the parties that the proceedings concern alleged sexual abuse of a young child many years ago. Prior to commencement of the proceedings there had been not only discussion between the parties about mediation, but a mediator was appointed. The mediation then arranged was set aside, while investigations by the defendant continued.

The result was that eventually the proceedings were commenced in September 2016. There has as yet been no defence filed, but the defendant’s solicitor indicates that investigations which have continued, have led to a position where it is considered that the proceedings will have to be defended, given that no corroborative evidence to support the plaintiff’s allegations has been discovered. There is a concern as to the vulnerability of the plaintiff about which there is no issue and a concern as to the consequences for her, of a mediation which is unlikely to resolve what is in issue.

There is no question that under s 26 the Court has the power to order the parties to pursue the mediation which is proposed. Such orders have been made in other cases where one party or the other has objected to mediation on the basis that it is unlikely to result in a resolution of what lies in issue between the parties. Nevertheless, as I observed to the defendant’s legal representative, what arises to be discussed at a mediation, includes all that lies between the parties, including the difficulties which confront them in the respective cases which they advance, not just whether the proceedings can be finally resolved.

On what is now before the Court, there are problems in the litigation confronting both parties, which could usefully be discussed at a mediation. At the least it will assist the parties by enabling them to identify, early in the litigation, what really lies between them, consistently with the obligation imposed by s 56 of the Civil Procedure Act on both parties and their legal representatives, as well as on the Court, to facilitate the overriding purposes there specified, that is the just, quick and cheap resolution of the real issues in the proceedings.

In those circumstances, I do not consider that the proposed mediation would be a futility, given the early stage of the litigation it is proposed that the mediation be conducted. That, in my view, raises the prospect of considerable benefit potentially to both parties.”

110. However, there are other factors to take into account.

111. In respect of the Tribunal organising a mediation, providing a Tribunal Member as mediator, and bearing the cost of organising the mediation, there are significant public resource issues to consider.

112. In the 2023-2024 financial year, the Consumer and Commercial Division of the Tribunal received 52,028 applications (NCAT 2023-2024 Annual Report). The Consumer and Commercial Division has an extensive jurisdiction, that includes residential tenancy disputes; consumer disputes; strata disputes; home building disputes; retirement village disputes; and retail lease disputes.

113. The Tribunal, like all public entities, has finite resources.

114. If the Tribunal was to order a mediation before a Tribunal Member (or multiple Tribunal Members) and determines to bear the costs of the mediation (other than the legal costs that the parties incur themselves in preparing for and participating in the mediation) it is diverting resources away from other proceedings.

115. To mediate approximately 90 sets of proceedings is a massive undertaking. Although there may be similar issues in a number of the proceedings, every matter has different factual circumstances and parties would need to be given an adequate opportunity to participate in the mediation of their particular matter, including giving instructions to the person representing them.

116. A mediation venue needs to be arranged. If the mediation is conducted by audio-visual link, this is more straightforward. If an in person mediation is ordered, the appropriate venue is likely to be a courthouse in reasonably close proximity to Grafton unless the mediation can be held at a Tribunal venue such as the venue in Sydney. The Tribunal has to share access to courthouses with Courts, such as the Local Court and the District Court. An appropriate venue may not be available within a short period of time; and if the Tribunal allocates a long period of time to the mediation to accommodate the large number of parties, an appropriate venue may not be able to be located.

117. The parties and their representatives may agree for the mediation to be held in person at the Tribunal’s venue in Sydney. However, this would involve the representatives and parties involved in the mediation travelling to Sydney. This may be something they are not prepared to do. Other Tribunal venues, such as Newcastle, may not have sufficient facilities to conduct a mediation while also dealing with hearing rooms being used for hearings.

118. Further, the allocation of a Tribunal Member to mediate removes that Member from being able to hear other matters during the period allocated for the Mediation. Undoubtedly, this litigation is important to the parties. However, other parties to litigation in the Tribunal would likely argue their litigation is just as important, if not more important. The Consumer and Commercial Division of the Tribunal deals with a large number of matters that may involve urgent considerations, such as the domestic violence provisions of the Residential Tenancies Act 2010 (NSW) (RT Act); lockouts under the RT Act; repairs to common property in strata disputes; and relief against forfeiture in retail lease disputes. Diverting Tribunal resources to mediate the HP Act disputes is a decision that has to take into consideration the other resource commitments of the Consumer and Commercial Division.

119. Another consideration is that, if the HP Act proceedings are not resolved, or the issues narrowed, the Tribunal will be faced with hearing and determining approximately 90 matters. Those matters will have to be heard and determined separately. As discussed previously, there is no mechanism for considering all the proceedings as a ‘class action’ and even if there were, that may not be appropriate in any event. The time, cost and resources of the Tribunal involved in hearing and determining all of the HP Act matters will be significant.

If a Mediation Were Ordered, How Would It Be Structured?

120. As discussed previously, the Council submits that if a mediation is ordered, it should be up to the parties to organise a private mediator and contribute equally to the cost of mediation. Their position will be set out in detail later in this decision.

121. Making such an order would be straightforward. The problem is, however, a private mediation has limited prospects of coming to fruition. Although I do not have any evidence of the financial circumstances of the HP Act applicants, I have no reason to disbelieve the submission of Mr Chase that many of them have limited financial means. The difficulty in getting those persons to contribute in shares such that the applicants in the HP Act proceedings contribute half the cost of a private mediation is self-evident. It is highly unlikely any private mediator would agree to be engaged without confidence and security their mediation fee would be paid, as well as associated costs such as booking a venue.

122. The private mediator would also have to engage with the duration of a mediation involving approximately 90 applicants, unless the parties were to agree to a small group of matters being mediated first.

123. The detailed positions of the parties regarding mediation are as follows:

Council

124. If a mediation is ordered, it should be in Mr Chase’s matter as the ‘representative’ proceedings, with an estimated duration of 2 hours. The mediation should be conducted by a private mediator from the panel of mediators of the Law Society NSW. An audio-visual mediation is preferrable due to “costs and location”. Both parties should share the costs of the mediation equally. If an in person mediation is conducted, it should be at the head office of the Council in Grafton, with 2 hours allocated.

125. The Council opposes the General Manger being ordered to attend the mediation. The Council asserts that there is no power to direct the General Manager to appear in person, and even if there was, it would not be appropriate. It is sufficient that the legal representatives of the Council are able to obtain instructions from their client on the day of the mediation.

Mr Chase (and the Parties He Represents)

126. On 7 August 2025, Mr Chase sent to the Tribunal a 5.5 page submission, which he elaborated upon at the directions hearing on 22 August 2025.

127. Mr Chase asserts that he spoke to “two private mediation firms” , who emphasized that mediating a large number of disputes would involve “multiple sessions, tailored approaches for smaller groups and significant preparatory work”. Neither private mediator was prepared to indicate the likely cost, but according to Mr Chase it would be “substantial and potentially prohibitively expensive”.

128. Mr Chase submits that the mediation should be before a Tribunal Member. He asserts a “hybrid approach” where applicants who can attend in person do so, and applicants who cannot attend in person can appear by audio-visual link.

129. In respect of there being a “representative” matter, Mr Chase submits that this is not appropriate, because it would cause applicants to believe that they were “not being heard” and would be “procedurally unfair”.

130. Mr Chase submits that the General Manager of the Council should attend in person because “it is central to the credibility, fairness and effectiveness” of the mediation process. The General Manager has not given an explanation for the decision to issue the notices to terminate, and, Mr Chase submits, the participation of the General Manager is “not only appropriate, but essential”.

131. Mr Chase proposes the following structure before a Tribunal Member as mediator:

1. 3 hours at Maclean between the Committee of the Clarence Valley Semi Permanent Van Group Inc and the Council (with the General Manager in attendance).

2. 3 hours at Maclean for the Iluka park matters, with Mr Chase also in attendance with the applicants and the General Manager of the Council in attendance.

3. 3 hours at Maclean for the Brooms Head park matters, with Mr Chase in attendance with the applicants and the General Manager of the Council in attendance.

4. 3 hours at Grafton for the Minnie Waters park matters, with Mr Chase in attendance with the applicants and the General Manager of the Council in attendance.

5. 3 hours at Grafton for the Wooli park matters, with Mr Chase in attendance with the applicants and the General Manager of the Council in attendance.

6. 3 hours by audio-visual link for the applicants unable to attend in person. Mr Chase attending with the applicants and the General Manager of the Council in attendance.

Further Matters for the HP Act Parties to Consider in the Dispute

132. At present, there does not appear to be any compromise between the parties or acknowledgement that compromise may be in the best interests of all parties.

133. Further, it is clear from the submissions (both written, and at the directions hearings) that many, if not all, of the applicants regard the decision to issue the notices to terminate to be a personal decision of the General Manager, rather than the decision of the operator of various parks.

134. It is counterproductive if litigation becomes consumed in personalities, or personal grievances. It is also counterproductive if parties have a misapprehension as to what the legal process involves. As discussed previously, notwithstanding the subjective views of the parties about the dispute generally, the Tribunal has a duty to conduct legal proceedings to achieve the just, quick and efficient resolution of the real legal issues (emphasis added) in dispute under the legislation to which the Tribunal has jurisdiction.

135. What are the real legal issues must be assessed objectively, not from the subjective perception of the parties and their representatives. As discussed previously, parties have a duty to conduct litigation in the Tribunal in a manner that assists the Tribunal to achieve the just, quick and cheap resolution of the real legal issues in the dispute. That involves the parties focussing upon and confining themselves to the real legal issues in the Tribunal proceedings, not necessarily what they perceive as the issues or what they may think is beneficial to a particular outcome they seek.

136. In this regard, it is important the parties to consider the risks and the potential complexities. I raise such issues not because I have formed any concluded view about any of the legal issues in dispute, but to provide a framework for the parties and to encourage the parties to give strong consideration to resolving the dispute by being prepared to compromise.

137. From the perspective of the applicants, if the proceedings are heard and determined by the Tribunal (and each matter will have to be heard separately) there is a risk they will lose. Under s 60(1) of the NCAT Act, parties are to bear their own costs, unless “special circumstances” are established under s 60(2) of the NCAT Act, taking into account the matters under s 60(3).

138. However, an exception to that is Reg. 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules). If the amount “claimed or in dispute” in the proceedings exceeds $30,000, Reg. 38 applies and allows a costs order without “special circumstances” having to be established. In Ms Marno’s matter, the amount claimed or in dispute clearly exceeds $30,000. In the matters in which Mr Chase purports to file Amended Points of Claim applying to all of the HP Act matters where he represents the applicants, no amount is specified. However, it appears from the substance of what is submitted by Mr Chase (and what he set out in his original application), those applicants are seeking more than $30,000 in damages or compensation.

139. Further, some of the orders sought by the applicants are not straightforward. I have previously referred to the principles pertaining to the jurisdiction of the Tribunal. Section 26 of the HP Act makes clear that the order making power of the Tribunal is limited to breaches of the occupancy agreement, or disagreements about matters that could form the basis of a breach of the occupation agreement. Subject to any legal argument to the contrary or the parties identifying any legal authorities that assert otherwise, Section 26 of the HP Act focusses upon breach of contract, or matters that could form the basis of breach of contract.

140. The order making powers in s 27 of the HP Act do not refer to the Tribunal having the power to grant the remedy of a declaration. Parties seeking a declaration will need to demonstrate how the Tribunal has the power under s 27 of the HP Act to make such an order, as well as the relevant breaches (or disputes that could form the basis of a breach) of the occupation agreement that are sufficient to cause the Tribunal to make such an order.

141. There are also other problematic aspects to the Amended Points of Claim filed by Mr Chase. I have referred to two such issues previously. Firstly, individual applicants need to confirm in writing to the Tribunal and the Council that they agree to, and rely upon, the Amended Points of Claim. Secondly, the claim for damages or compensation is unquantified. Different applicants will have different factual basis for claiming damages. The amount sought, and the basis the amount sought, will need to be set out. Due to the flexibility the Tribunal has under s 38 of the NCAT Act in respect of pleadings (see, for example, Sunaust Properties Pty Ltd t/as Central Sydney Realty v The Owners-Strata Plan No 64807 [2023] NSWCA 188 at [157]-[163]), I do not propose at this stage to make further orders granting leave to file and serve further Amended Points of Claim.

142. However, without determining whether there should be further Amended Points of Claim, at the very least each applicant will need to file and serve a schedule that clearly sets out the damages and compensation claimed that quantifies the amount, and identifies each ground of compensation or damages (e.g. general damages; damages for economic loss; damages for loss of opportunity).

143. There are also legal issues as to whether a site agreement under the HP Act is the type of agreement that would empower the Tribunal to make an order for general damages due to distress, upset, or inconvenience caused by any breach by the Council (see the discussion of the applicable principles in Archibald v Powlett (2017) 53 VR 645; [2017] VSCA 259 at [62]; Cappello v Hammond & Simmons NSW Pty Ltd [2021] NSWCA 57 at [87]-[90]; Moore v Scenic Tours Pty Ltd (2020) 268 CLR 326; [2020] HCA 17; Young v Chief Executive Officer (Housing) (2023) 278 CLR 208; [2023] HCA 31).

144. There are other problematic aspects of the Amended Points of Claim filed by Mr Chase. Some of the orders are very broad (e.g. an injunctive order that the operator cannot take possession of sites without order of a Court or the Tribunal). Another order sought (that the General Manager attend mediation) is not an order that can be made on a final basis under s 27 of the HP Act.

145. From the perspective of the Council, there are also risks involved in the proceedings being litigated to finality. As discussed previously, there are potentially between 90-100 sets of proceedings that will need to be heard and determined by the Tribunal. Unsuccessful parties have potential appeal rights under s 80 to the Appeal Panel of the Tribunal, and from the Appeal Panel, with leave to the Supreme Court. The potential legal costs to the Council are very significant, and any costs orders in favour of the Council may (a) be on party/party basis rather than on an indemnity basis; and (b) may not be easily recovered.

146. If the applicants in the HP Act proceedings succeed on either or the arguments that (a) the notices are invalid because they do not comply with the applicable provisions under the HP Act; or (b) they remain as ongoing fixed term agreements, then it does not appear the Council will be able to enforce the notices.

147. Further, the claims for compensation and damages may succeed. If they do (which is a matter of speculation) the Council may be liable for a significant amount of money, considering the number of applications. Ms Marno’s application for damages for the purported loss of ability to sell her van involves a significant amount of money.

148. Mr Chase and Ms Marno also refer to the Council (as operator for the parks) knowingly allowing site occupants to modify vans so that the vans are no longer movable. That allegation may raises issues of waiver and estoppel (Commonwealth v Verwayen (1990) 170 CLR 394; [1990] HCA 39). I express no view as to whether the Tribunal would have the power to consider such legal issues under the HP Act nor the potential outcome.

149. Finally, if any cause of action or defence is outside the jurisdiction of the Tribunal, the possibility exists that a party, or the Tribunal of its own motion, may transfer proceedings to a court of competent jurisdiction under Sch. 4 Cl. 6 of the NCAT Act (Promina Design & Construction Pty Ltd v The Owners-Strata Plan No 97449 [2023] NSWCATAP 252).

150. From the above discussion, the complexities of the litigation and the risks to all parties should be abundantly clear. I am not purporting to give parties legal advice, nor to express any views on the legal merits of the disputes. The above discussion is only to amplify to the parties the uncertainty of the outcome of the litigation in this dispute, and the benefit to the parties putting emotion to one side and being prepared to compromise.

Should Mediation of the HP Act Matters Be Ordered, and What Form Should It Take?

151. There are aspects of Mr Chase’s submissions regarding mediation that I do not accept. Ms Marno’s Solicitors did not express any written position on the issue of mediation, but did not disagree with the position expressed by Mr Chase.

152. I am unpersuaded that the proposed ‘hybrid’ model where a mediation would occur over 4 days with some persons appearing in person and others by AVL would have any realistic prospect of success. Even with position papers being circulated before the mediation, organising parties into break out rooms and scheduling the dispute so that each individual matter could be discussed and instruction obtained is not feasible in the period of time proposed.

153. Further, I do not accept that a large number of mediations where parties appear by audio-visual link have good prospects of success. Both the Council and Mr Chase have referred to audio-visual link mediations. In person mediations have a much better prospect of success, as they avoid technology problems such as the link dropping out, miscommunication, and confusion.

154. There is another problem with an audio-visual link mediation that also applies to an in person mediation. The submissions of Mr Chase make no reference to the applicants being prepared to sign a mediation agreement. Examples of mediation agreements are found on the Law Society of NSW website; and the Bar Association of NSW website. Mediation agreements emphasise that the documents and information pertaining to the mediation are confidential, and cannot be disclosed other than in limited circumstances (see Cl. 19-21 of the Law Society of NSW Short Form Mediation Agreement).

155. I would not be prepared to order a mediation unless all parties agree to, and sign, a mediation agreement that protects the confidentiality of the materials prepared for the mediation and the discussion which occur. Confidentiality is an important part of all mediations, as without it there is no real prospect that parties will be able to engage in full and frank discussions so as to negotiate in good faith.

156. If parties (and representatives) appeared by audio-visual link there is a prospect that even if the parties signed a mediation agreement, other persons not bound by such a confidentiality agreement may have access to the mediation.

157. I do not accept that an order should be made that the General Manager of the Council attend a mediation. Even if the Tribunal has the power to make such an order as a condition of the order to mediate (ss 37 and 58 of the NCAT Act), I am not satisfied it is appropriate. I accept that many of the applicants feel the decision is that of the General Manager and they want to be “heard” to express their displeasure. However, in the context of a mediation, that will be unproductive. Rather than putting emotion to one side and focussing upon the objective benefits of the parties compromising to resolve the dispute, emotions will be amplified. A mediation used as a vehicle for applicants to express anger or grief focused upon the Geneal Manager with the General Manager physically present at the mediation is inappropriate, and will be unproductive.

158. Having weighted up the competing considerations, I am prepared to order that there be a mediation before a Tribunal Member at a date to be determined (with the Tribunal bearing the cost of organizing the mediation, other than the legal costs incurred before the parties), but only on the following conditions:

1. The applicants select 4 HP Act matters to be mediated. The can do this by whatever appropriate mechanism, such as organising a meeting of the Clarence Valley Semi Permanent Van Group Inc. Those matters are to be selected within 14 days of the date of this decision. The Council is to be notified in writing of the matters selected.

2. The mediations of those 4 matters are to be conducted before a Tribunal Member with the parties of those matters and their representatives to attend in person.

3. The parties are to confer with each other and determine whether they prefer the mediations be listed at a courthouse venue near Grafton, or at a Tribunal venue that they are prepared to travel to (and if so, which venue).

4. The General Manager of the Council is not required to attend in person, but the legal representatives of the Council are to attend in person. However, the legal representative of the Council must be able to obtain instructions on the day of the mediation from a person who has suitable authority to bind the Council in respect of offers and any settlement agreement.

5. The 4 matters are to be listed together for mediation for a duration of 1 day.

6. 21 days prior to the mediation, all parties and representatives who will be attending the mediation are to sign a Mediation Agreement in the form set out in the Law Society of NSW Mediation Agreement, with any agreed modifications to that document. A signed copy of the mediation agreement must be filed with the Tribunal by 14 days prior to the date of the mediation, and the mediator will exchange a copy signed by the mediator and all parties and practitioners.

7. No person can attend the mediation unless they have signed, and agree to be bound by, the Mediation Agreement.

8. If there is no agreed and duly signed Mediation Agreement prior to the commencement of the mediation, the mediation will not proceed.

9. By 7 days prior to the mediation, the parties and their representatives are to file with the Tribunal and serve on the other party a position paper (not exceeding 4 pages).

10. If the parties resolve the dispute at the mediation, the parties may file signed proposed consent orders, or in the alternative, the applicants may withdraw the proceedings under s 55(1)(a) of the NCAT Act.

11. The Tribunal Member appointed as mediator may issue further directions prior to the mediation to deal with any other matters necessary to ensure the mediations can proceed in an efficient manner.

12. The proceedings are to be re-listed for a directions hearing no earlier than 7 days after the date of the mediation. At that directions hearing, the Tribunal will consider whether there is any utility in ordering further matters to be mediated, and if so, how such mediations are to occur. If there is no utility in ordering further mediations, then procedural directions will likely be made setting matters down for hearing in a structured way that the Tribunal regards as appropriate.

159. In my view, it would only be feasible to conduct mediations in 4 matters on the day of mediation. If those mediations were successful, the Tribunal would then consider at a later procedural directions hearing whether more matters should be listed for mediation. The prospects of resolving the disputes should become clearer after the first 4 matters are mediated.

What Happens if the Parties Do Not Agree To The Proposed Mediation Structure?

160. The proceedings are to be re-listed before the Tribunal for further procedural directions in any event.

161. I do not propose to make an order under s 37 of the NCAT Act in respect of the HP Act matters until that directions hearing. Other than any minor changes, the conditions I have set out previously will determine whether or not I make an order under s 37. If the parties strongly oppose the conditions (in particular, the applicants are not prepared to mediate on the conditions previously set out) I may determine that there is no utility in ordering mediations before a Tribunal Member in the HP Act matters.

162. In the alternative, if the parties agree to mediations before a private mediator in the HP Act matters, and can work out an agreed schedule, I may make an order under s 37 of the NCAT in similar terms to the orders made in the 10 proceedings where the parties and representatives have agreed to a mediation before a private mediator.

163. If the HP Act matters are not going to proceed to mediation, then matters need to be set down for hearing unless there is some compelling reason not to do so. A ‘holding pattern’ of further directions hearings that do not advance the proceedings is not consistent with ss 36(1) and (3) of the NCAT Act.

164. However, in my view it is not appropriate to make procedural directions setting approximately 90 matters down for hearing. At this stage, and subject to any further submissions from the parties, my view is that there is utility in one or two matters being set down for hearing so that the decisions in those matters may give some guidance to the parties in the other matters. That issue was raised in previous procedural directions.

165. At the directions hearing on 22 August 2025, I enquired with Mr Chase, Ms Mulherin and Ms Caban whether there were one (or possibly two) matters that could be set down for hearing first. Ms Mulherin submitted that Ms Marno’s matter was not necessarily representative of the issues in the other HP Act matters, because of the allegations regarding sale of the van and the amount of damages claimed.

160. Mr Chase submitted that he could not identify any particular ‘representative’ matter that should be determined first, because every matter was equally important.

161. I acknowledge that matters are important to each individual party. However, I have to work out a way to hear and determine in an orderly and structured way the large number of HP Act proceedings. That does not mean the Tribunal is ‘favouring’ a particular matter.

162. In my view, the matters to be set down for hearing first are Mr Chase’s application and Ms Marno’s application. They would not be set down for hearing together before the same Member. Rather, they would be set down for hearing individually at the next directions hearing (unless there was some compelling reason not to) with appropriate procedural directions for the filing and serving of documentary evidence; and any other appropriate directions to facilitate an efficient and procedurally fair hearing.

163. I raised with Mr Chase how long he would seek to file and serve documentary evidence, including witness statements setting out relevant factual events and expert reports. He indicated 8 weeks because there were many persons he wanted to obtain witness statements from.

164. It is unnecessary at this stage to make directions regarding the filing and serving of documentary evidence in Mr Chase’s matter, as that will be a matter for consideration at the next directions hearing. However, it is pertinent to point out that the proceedings that his proceedings involve his own dealings with the Council relevant to the claims made by him under the HP Act, and a matter being listed for hearing first does not mean that all of the applicants are giving evidence in Mr Chase’s proceedings. The Tribunal has the power to structure any of its hearings in a way that achieves compliance with its obligations under ss 36 and 38 of the NCAT Act.

The Application By Ms Marno to Disclose Documents and Matters Pertaining to the Summons.

171. This interlocutory dispute is to be determined in the following way:

1. Ms Marno is to file and serve a miscellaneous orders application with any documents and submissions in support of the orders sought by 7 days from the date of this decision. Such submissions are to include whether the party agrees to the decision being made on the papers under s 50(2) of the NCAT Act, and if not, why not.

2. The Council is to file and serve any documents and submissions in response to the miscellaneous orders application by 14 days from the date of these directions. Such submissions are to include whether the party agrees to the decision being made on the papers under s 50(2) of the NCAT Act, and if not, why not.

3. The miscellaneous orders application will either be determined on the papers, or after oral submissions made at the next directions hearing.

The Application By the Council to Set Aside the Summons to Produce Documents Issued By Mr Chase

172. The interlocutory dispute is to be determined in the following way:

1. The Council is to serve a copy of the miscellaneous orders application and its submission and documents on Mr Chase by 7 days from the date of this decision. Such submissions are to include whether the party agrees to the decision being made on the papers under s 50(2) of the NCAT Act, and if not, why not.

2. Mr Chase is to file with the Tribunal and serve on the Council all submissions and documents in opposition to the application for miscellaneous orders by 14 days from the date of this decision. Such submissions are to include whether the party agrees to the decision being made on the papers under s 50(2) of the NCAT Act, and if not, why not.

3. The miscellaneous orders application will either be determined on the papers, or after oral submissions made at the next directions hearing.

Other Procedural Issues

173. Due to the very large number of matters listed at the directions hearing on 22 August 2025, it will take the Registry a period of time to generate and issue the orders to all parties. The orders will be generated and sent to the parties, but it will take an unspecified period of time.

174. To assist the Registry, and so the parties are quickly informed of the orders I have made, the parties are directed that:

1. In respect of the 10 matters that are to be listed for a mediation before a private mediator, the Solicitor for the Council is to inform the Solicitors acting for the applicants from NSW Legal Aid of the orders made by email by 1 business day from the date of this decision.

2. In respect of the other matters, Mr Chase is to inform the applicants (including Mr Bamford, but not Ms Marno) of the orders made by email by 1 business day from the date of this decision.

3. Mr Chase and the Solicitor for the Council do not have to email a copy of my reasons. It is sufficient they inform the other party of the orders made.

ORDERS

1. Case Numbers 2025/00140114 (Applicant-House); 2025/00154143 (Applicant-Fuller); 2025/00194150 (Applicant-Johnson); 2025/00139939 (Applicant-Adamson); 2025/00140663 (Applicant-H.Walker); 2025/00144924 (Applicant-Gillespie); 2025/00159752 (Applicant-Matheson); 2025/00212727 (Applicant-Smith); 2025/00138157 (Applicant-Harvey); 2025/00140657 (Applicant-Watchorn); 2025/00234293 (Applicant-Stone); 2025/00140293 (Applicant-Goff); and 2025/00194454 (Applicant-G. Walker) are directed to participate in a mediation conducted by a private mediator pursuant to s 37 of the Civil and Administrative Tribunal Act 2013 (NSW). Those matters are to be listed for a further directions hearing not earlier than 8 weeks from the date of this decision.

2. In all other proceedings that were listed for a directions hearing on 22 August 2025, the matters are to be listed for another directions hearing at a date to be fixed by the Tribunal Registry. At that directions hearing, the Tribunal will consider matters including (a) whether some matters are listed for a mediation in accordance with the reasons in this decision; and (b) if not, whether matters are listed for hearing in accordance with the reasons in this decision. Parties are directed to provide relevant information to assist the Tribunal, including the applicants identifying 4 matters to be listed for mediation in accordance with the reasons in this decision, and any unavailable dates for 1 day mediation in the period to 31 December 2025.

3. In Case Number 2025/00140385 (Applicant-Marno) the application regarding relief from an undertaking is to be determined as follows:

1. Ms Marno is to file and serve a miscellaneous orders application with any documents and submissions in support of the orders sought by 7 days from the date of this decision. Such submissions are to include whether the party agrees to the decision being made on the papers under s 50(2) of the NCAT Act, and if not, why not.

2. The Council is to file and serve any documents and submissions in response to the miscellaneous orders application by 14 days from the date of these directions. Such submissions are to include whether the party agrees to the decision being made on the papers under s 50(2) of the NCAT Act, and if not, why not.

3. The miscellaneous orders application will either be determined on the papers, or after oral submissions made at the next directions hearing.

4. In Case Number 2025/00140234 (Applicant-Chase) the application for miscellaneous orders filed by the respondent in regard to a Summons is to be dealt with as follows:

1. The Council is to serve a copy of the miscellaneous orders application and its submission and documents on Mr Chase by 7 days from the date of this decision. Such submissions are to include whether the party agrees to the decision being made on the papers under s 50(2) of the NCAT Act, and if not, why not.

2. Mr Chase is to file with the Tribunal and serve on the Council all submissions and documents in opposition to the application for miscellaneous orders by 14 days from the date of this decision. Such submissions are to include whether the party agrees to the decision being made on the papers under s 50(2) of the NCAT Act, and if not, why not.

3. The miscellaneous orders application will either be determined on the papers, or after oral submissions made at the next directions hearing.

5. In respect of the matters that are to be listed for a mediation before a private mediator, the Solicitor for the Council is to inform the Solicitors acting for the applicants from NSW Legal Aid of the orders made by email by 1 business day from the date of this decision.

6. In respect of the other matters, Mr Chase is to inform the applicants (including Mr Bradfield, but not Ms Marno) of the orders made by email by 1 business day from the date of this decision.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 10 September 2025