Dalgleish v Henry and Tolson T/A Teraglin Lakeshore Home Village
[2018] NSWCATCD 18
•13 June 2018
Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Dalgleish v Henry & Tolson T/A Teraglin Lakeshore Home Village [2018] NSWCATCD 18 Hearing dates: 6 March 2018 Decision date: 13 June 2018 Jurisdiction: Consumer and Commercial Division Before: S Hanstein, General Member Decision: Within 21 days of the date of this decision, the respondent is to provide the applicant with reasonable access to the electricity accounts issued to the respondent by its electricity service provider, for the 12 month period up to 6 March 2018.
Legislation Cited: Residential (Land Lease) Communities Act 2013 Cases Cited: Reckless v Silva Portfolios Pty Ltd t/as Ballina Waterfront Village & Tourist Park [2018] NSWCATAP 80 Texts Cited: None Category: Principal judgment Parties: Charles Dalgleish (applicant)
Yvonne A Henry & Maxwell N Tolson T/A Teraglin Lakeshore Home Village (respondent)Representation: Applicant in person
Mr Tarnawsky for the respondent
File Number(s): RC 17/48615 Publication restriction: Nil
reasons for decision
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The applicant seeks, pursuant to section 83 of the Residential (Land Lease) Communities Act 2013 (“Act”), an order allowing reasonable access to the respondent’s electricity bills. That section provides:
83 Access to information about utility charges
The operator of a community must provide a home owner with reasonable access to bills or other documents in relation to utility charges payable by the home owner to the operator.
Maximum penalty: 10 penalty units.
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The phrase “utility charge” means the usage charge or service availability charge for the provision of a utility, which includes electricity (s 4 of the Act).
Background
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It was common ground that there is a residential site agreement in place between the applicant and the respondent, who is the park operator, and that, in general terms, the applicant is required to pay electricity charges to the operator for the use of electricity at the applicant’s residential site.
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On 11 August 2017, the applicant requested the respondent to provide a copy of its electricity account pursuant to s 83 of the Act. The respondent refused the request on the basis that there was no connection between the operator’s electricity bill and the electricity charges payable by the home owner to the operator.
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Following further communication which did not resolve the issue, the applicant lodged the present application with the Tribunal on 8 November 2017. A hearing was held on 6 March 2018, and the Tribunal’s decision was reserved to await a decision of the Appeal Panel which was expected to impact upon the Tribunal’s consideration of this matter.
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On 3 April 2018, the Appeal Panel published its decision in Reckless v Silva Portfolios Pty Ltd t/as Ballina Waterfront Village & Tourist Park [2018] NSWCATAP 80 (“Reckless”). That decision held that, relevantly, the effect of s 77(3) of the Act was that a park operator could not charge a home owner, for the home owner’s consumption of electricity, more than the park operator was being charged by the electricity service provider for the amount of electricity that the home owner had consumed (see Reckless at [58]).
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The Tribunal then invited the parties to make any further submissions they wished to make, in light of the decision in Reckless.
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Following the publication of the decision in Reckless, the respondent informed the applicant, in a letter dated 19 April 2018, that “we are willing to … allow you reasonable access by viewing the village electricity account”, and offered the applicant an appointment for that purpose. The applicant refused that offer, in a letter dated 23 April 2018, stating the offer “does not cover the request that was fully sought at the Tribunal”.
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The respondent submitted to the Tribunal on 27 April 2018 that they had agreed to allow the applicant reasonable access to the electricity accounts and, as that offer had been refused, the application to the Tribunal should be dismissed.
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The applicant submitted to the Tribunal that the order sought in the application should be made, and that the offer made by the respondent did not comply fully with s 83 of the Act or the orders sought by the applicant. The basis upon which the offer was considered not to comply fully was not specified in the submission of 30 April 2018, although a further submission dated 7 May 2018 referred to the respondent’s offer referring only to an electricity account, not accounts, and there was no mention of redacted accounts or date range outlined in the “original submission”.
Decision
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A consequence of the decision in Reckless is that the park operator’s electricity accounts are relevant to the electricity charges payable by the home owner to the operator, and are therefore documents falling within s 83 of the Act.
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I am satisfied that it is appropriate for an order to be made allowing the applicant reasonable access to the park operator’s electricity accounts, which I understand to be what is sought by the applicant’s application.
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To the extent that the applicant is seeking that all residents be given that access (if that is what he is doing), I am not satisfied that is an order I can make on an application lodged only be the applicant. Nevertheless, in light of the position now taken by the respondent following Reckless and the order that I am making, it appears likely that the respondent would allow all residents access to its electricity accounts.
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There is no evidence before me to the effect that the respondent intends to make redactions to the electricity accounts before access is given, and I do not consider I need to address that in the order. The applicant’s other issues with the respondent’s offer made on 19 April 2018, namely the reference to account in the singular and no specification of date range, are addressed below.
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I am not satisfied is it appropriate to dismiss the application, as submitted by the respondent on 27 April 2018. I consider the applicant is entitled to the order he seeks, and the order I am making provides more specificity as to the accounts to which access is to be given than was contained in the respondent’s offer of 19 April 2018. Further, the leave granted for the parties to make further submissions following the hearing was only in relation to the decision in Reckless and not otherwise as to how the proceedings should be disposed of.
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At the hearing, the parties agreed that, should an order requiring access to the park operator’s electricity accounts be made, the order should cover the accounts for a twelve month period.
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The order is, then, that within 21 days of the date of this decision, the respondent is to provide the applicant with reasonable access to the electricity accounts issued to the respondent by its electricity service provider, for the 12 month period up to 6 March 2018.
S Hanstein
General Member
Civil and Administrative Tribunal of New South Wales
13 June 2018
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: 22 August 2018
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