Coorey v Pacific Gardens Mobile Homes trading as Pacific Gardens Van Village

[2010] NSWDC 125

CITATION:	Coorey v Pacific Gardens Mobile Homes trading as Pacific Gardens Van Village [2010] NSWDC 125
HEARING DATE(S):	17 June 2010
JUDGMENT DATE:	1 July 2010
JURISDICTION:	District Court - Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1) The appeal is dismissed. 2) The orders of Chairperson Ransome in the Consumer Trader and Tenancy Tribunal of 29 September 2009 are confirmed, namely: a) The respondent is to comply with clause 6 of the residential site agreement and is to pay the park owner for electricity charges, including the service availability charge calculated at 70% of local standard retail supplier’s service availability charge. b) The respondent is to pay the applicant the sum of $217.87 on or before 15 October 2009. 3) The period for payment provided for in Order 2 is extended to 30 July 2010. 4) The Exhibits are returned. 5) My reasons are published.
CATCHWORDS:	CONTRACT - Caravan park - Supply of electricity to residents - Appeal from Consumer, Trader and Tenancy Tribunal
LEGISLATION CITED:	Electricity Act 1945 Electricity Supply Act 1995 Residential Parks Act 1998
TEXTS CITED:	Customer Service Standards for the Supply of NSW Department of Commerce, Electricity to Permanent Residents of Residential Parks, 2006 NSW Department of Energy, Code of Practice for Electricity Supply to Long–Term Residents of Caravan Parks, 1995
PARTIES:	Francis Coorey (Plaintiff) Pacific Gardens Mobile Homes trading as Pacific Gardens Van Village (Defendant)
FILE NUMBER(S):	2009/00332940 (Previously 302/09)
SOLICITORS:	Self Represented (Plaintiff) Self Represented by E Baker (Defendant)

JUDGMENT

1 Mr Frank Coorey is a resident of the Pacific Gardens Mobile Home Park at Heatherbrae. He occupies a residential site within the Park pursuant to a Residential Site Agreement dated 24 July 2004. The term of the agreement was one year with the right to remain on the residential site on the same terms and conditions subject to increases in rent in accordance with the Residential Parks Act 1998.

2 Clause 6 of the Agreement provides:

ELECTRICITY

6 The resident agrees to pay all electricity charges in connection with the residential site where:

6.1 the residential premises are individually metered in compliance with the Code of Practice for Electricity Supply to Long–term Residents of Caravan Parks prepared by the Department of Energy, and

6.2 any charges for the supply or resupply of electricity to the resident are calculated in accordance with the Code (whether by reference to a published domestic tariff or otherwise), and

6.3 the resident is provided with a receipt for any amount paid to the park owner for electricity consumption or availability, and that receipt is separate from any rent receipt provided to the resident or is identified separately on the rent receipt, and

6.4 the resident is issued with accounts that comply with section 37 of the Residential Parks Act 1998, and with any relevant provisions of the Code that are not inconsistent with that section.

3 The Code that was current at the time Mr Coorey entered into the Agreement was issued by the Department of Energy in 1995 (the 1995 Code).

4 In August 2006 the Department of Commerce, through the NSW Office of Fair Trading, published a document titled Customer Service Standards for the Supply of Electricity to Permanent Residents of Residential Parks (the 2006 document).

5 Mr Coorey maintained that the 2006 document was a code that replaced the 1995 Code. He maintained that since he agreed to pay electricity charges calculated in accordance with the 1995 Code, he was not obliged to pay what he considered to be an additional charge imposed by the 2006 document. The charge that he believed was additional was referred to in the 2006 document as a Service Availability Charge or SAC.

6 To date these arguments have been dealt with by three members of the Consumer Trading and Tenancy Tribunal, by Judge Elkhaim in this Court in April 2009 and by myself in June 2010.

Was the 2006 document a code and, if so, did it replace the 1995 Code?

7 After spending two days hearing the arguments, Judge Elkhaim remitted the proceedings to the Consumer Trading and Tenancy Tribunal for further hearing in relation to the acceptance of the appellant of the introduction into the lease of the August 2006 Code.

8 Chairperson Ransome heard argument on that issue and published her reasons on 29 September 2009. Mr Coorey appealed on the ground that the issue remitted to the Tribunal was not dealt with in those reasons.

9 He pointed to the paragraph in the reasons that read:

The 2006 Code is silent on the question of whether it replaced the 1995 Code. For the present purposes I have assumed that it does. Given my finding that Mr Coorey is liable under the 1995 Code to pay the SAC, I do not need to consider whether the 2006 Code has been incorporated into his agreement.

10 With respect to Judge Elkhaim, Chairperson Ransome and Mr Coorey, I did not consider that the 2006 document was a Code. It dealt only in part with the matters contained in the 1995 Code. The foreword to the 1995 Code stated, amongst other things:

This Code establishes the technical and safety requirements for the provision of an electricity supply to long-term sites and, where applicable, the commercial arrangements under which caravan park proprietors are to resupply electricity to their long-term residents.

Long-term residents of caravan parks which comply with the requirements of this Code will be able to receive electricity at the appropriate domestic tariff either as direct customers of their local electricity distributor or as customers of their caravan park proprietor.

11 The 1995 Code imposed obligations on managers of caravan parks concerning electrical installations, metering requirements and commercial arrangements for the re-supply of electricity.

12 Part 4 of the 1995 Code dealt with the obligations that concern commercial arrangements for the re-supply of electricity. Clause 4.1 compelled the manager to resell electricity at a rate not exceeding the domestic tariff set in accordance with the Electricity Act 1945 (now the Electricity Supply Act 1995). Clause 4.2.2 required that the amount payable by the resident be calculated in accordance with the local electricity distributor’s domestic tariff.

13 There was a note to clause 4.2.2 which may be the source of Mr Coorey’s concerns because it makes no reference to a SAC. It read:

NOTE: Domestic tariffs are structured in three rates. The primary rate applies to the first 300kWh/quarter, the secondary rate to the next 600kWh/quarter and the balance rate to the consumption beyond 900kWh/quarter.

14 In contrast, the 2006 document was issued by a different State Government department. It imposed minimum standards of customer service on park owners or managers. It created additional rights for park residents, for example, the right to compensation in certain circumstances where electricity supply was disrupted. It also dealt in some respects with commercial arrangements for supply.

15 On my reading of the 2006 document, it was not and could not be a Code that replaced the 1995 Code. I considered that it supplemented the 1995 Code by imposing additional obligations on the manager.

Did the 2006 document permit the manager to impose an additional charge for electricity?

16 I was satisfied that in dealing with this issue Chairperson Ransome committed no error of law. She was correct in stating that neither the 2005 Code nor the 2006 document imposed an obligation on residents to pay for electricity.

17 This obligation was dealt with in the lease. Clause 6 of the lease adopted much of the wording of s 37 of the Residential Parks Act 1998. S 37 of the Act provides that a park manager and resident may enter into an agreement … to pay electricity charges (including availability charges, but not including installation costs). Under clause 6 of the lease Mr Coorey agreed to pay … all electricity charges … .

18 S 37 of the Act refers to a relevant code only in dealing with the conditions upon which such an agreement may be entered into. They include the provision of individual meters, calculation of charges in accordance with the relevant code, provision of receipts and accounts. The conditions do not empower a park manager to set or restructure tariffs for electricity.

19 Once Mr Coorey agreed under the Residential Site Agreement to pay all electricity charges, the function of the 1995 Code was to dictate to the manager the practices to be observed when calculating and billing for electricity charges as regulated under the Electricity Supply Act 1995.

20 Pricing and structuring of tariffs are matters for the Independent Pricing and Regulatory Tribunal operating under the provisions of the Electricity Supply Act. If IPART increases the tariff or restructures the components of the tariff, the manager may resell electricity at a rate not exceeding the tariff as increased or restructured, provided that in so doing the manager complies with the 1995 Code, as supplemented by the 2006 document.

21 There was no provision in the Residential Site Agreement or the 1995 Code that limited the manager to bill Mr Coorey for electricity at the tariff fixed at the date on which he signed the Agreement or on the basis of the structure of the tariff at that date.

22 The 2006 document maintained the restriction that the amount billed to Mr Coorey was not to exceed the relevant tariff as set under the Electricity Supply Act. However, it added a further restriction on the amount that the manager was permitted to bill. This related to the way in which the SAC was dealt with. By the time the 2006 document was published the relevant tariff was structured so that the SAC and the charge per kilowatt hour of electricity were separately dealt with.

23 Clause 3.1.2 of the 2006 document set a maximum rate for the SAC that depended on the rate of amps at which electricity was supplied to a site. In Mr Coorey’s case, the rate was between 30 to 59 amps and therefore the manager was restricted to charging him 70% of the SAC.

24 In this respect the charges for electricity supply to Mr Coorey were reduced.

25 Mr Coorey, however, read the 2006 document as imposing upon him an additional charge. There were two responses to his argument that this was not a charge that he agreed to pay when he signed his Residential Site Agreement:

1 The SAC was always part of the tariff. The only change made in 2006 was that it was separated out from the tariff charged per kWh and the manager was restricted in certain circumstances to billing less than 100% of the SAC.

2 The Residential Site Agreement obliged Mr Coorey to pay all electricity charges . Changes in the tariff as to its nomenclature, amount or structure were recognised in:

(a) Clause 6.2 which required that charges were to be calculated in accordance with the Code (whether by reference to a published tariff or otherwise) (e mphasis added); and

(b) Clause 4.2.4 of the 1995 Code that made provision for tariff changes and the way in which the billing of those changes was to be effected.

26 The result was that Mr Coorey was obliged to pay the SAC because, in 2004 when he signed the Residential Site Agreement, the SAC was and always remained part of the tariff.

27 Even if the SAC had not been included in the tariff at that time and its introduction involved the imposition of an extra charge, under the 1995 Code, the manager would be entitled to bill Mr Coorey for it, provided the charge did not exceed the maximum fixed under the Electricity Supply Act.

ORDERS

28 The appeal is dismissed.

29 The orders of Chairperson Ransome in the Consumer Trader and Tenancy Tribunal of 29 September 2009 are confirmed, namely:

1 The respondent is to comply with clause 6 of the residential site agreement and is to pay the park owner for electricity charges, including the service availability charge calculated at 70% of local standard retail supplier’s service availability charge.

2 The respondent is to pay the applicant the sum of $217.87 on or before 15 October 2009.

30 The period for payment provided for in Order 2 is extended to 30 July 2010.

31 The exhibits are returned.

32 My reasons are published.

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