Dodge v Hacienda Caravan Park Pty Ltd

[2021] NSWCATEN 2

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Dodge v Hacienda Caravan Park Pty Ltd [2021] NSWCATEN 2

Hearing dates:

23 December 2020

Date of orders:

8 January 2021

Decision date:

08 January 2021

Jurisdiction:

Enforcement

Before:

The Hon F Marks Principal Member

Decision:

(1)   I refer to the Supreme Court of New South Wales for its consideration the matter of whether the respondent Hacienda Caravan Park Pty Limited trading as Tweed River Hacienda Holiday Park has committed contempt of the NSW Civil and Administrative Tribunal by reason of its failure to comply with Orders made on 17 January 2018 in matter RC 17/33896 being in the following terms

(a) The respondent is to prepare and enter into with the applicant a written site agreement in the standard form as set out in Schedule 1 of the Residential (Land Lease) Communities Act 2013 within 7 days of the date of this order

(b)   Site fees payable under the agreement are to be in the same amount as are currently paid to the operator

(c)   The method of increasing site fees to be the same as that used most recently to increase the site fees

(d)   The commencement date of the agreement is specified to be the date of these orders.

(2) I note that the reference in Order 1 above should be a reference to the Residential (Land Lease) Communities Regulation 2015.

(3)   Costs are reserved with liberty to apply which must be exercised within 42 days of this date.

Catchwords:

CONTEMPT – application to refer proceedings to Supreme Court under section 73 (5) of the Civil and Administrative Tribunal Act – whether failure of operator to provide long-term site agreement under Residential (Land Lease) Communities Act 2013 pursuant to Order of Tribunal is capable of constituting contempt – principles relevant to referral –-proceedings referred.

Legislation Cited:

Civil and Administrative Tribunal Act 2013 ss 38,73

Residential (Land Lease) Communities Act 2013 (NSW) ss 12,26,109,156,157

Residential (Land Lease) Communities Regulation 2015

Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Movable Dwellings) Regulation 2005

Cases Cited:

Dodge v Hacienda Caravan Park Pty Ltd (unreported Civil and Administrative Tribunal NSW Consumer and Commercial Division RC 17/33896)

Hacienda Caravan Park Pty Ltd v Dodge [2018] NSWCATAP 108

Hacienda Caravan Park Pty Ltd v Dodge [2019] NSWSC 1296

Bott v NSW Land and Housing Corporation [2017] NSWCATCD 88

Bott v NSW Land and Housing Corporation (No 2) [2018] NSWCATCD 2

Texts Cited:

None Cited

Category:

Principal judgment

Parties:

David Dodge (Applicant)
Hacienda Caravan Park Pty Ltd (Respondent)

Representation:

Counsel:
P Batley (Applicant)

Solicitors:
Tenants Union of NSW Co-op (Applicant)
T Hickling (Agent) (Respondent)

File Number(s):

PC 20/47307

Publication restriction:

Nil

Reasons for decision

Background

1. By Application filed on 6 November 2020 the applicant in these proceedings, David Dodge seeks an order pursuant to section 73 of the Civil and Administrative Tribunal Act (“the CAT Act”) that this Tribunal refer the respondent, Hacienda Caravan Park Pty Limited trading as Tweed River Hacienda Holiday Park to the Supreme Court of NSW for determination by that Court whether the respondent is guilty of contempt of this Tribunal.

2. Section 73 of the CAT Act states

73 Contempt of Tribunal

(1)   The Tribunal has, if it is alleged, or appears to the Tribunal on its own view, that a person is guilty of contempt of the Tribunal committed in the face of the Tribunal or in the hearing of the Tribunal, the same powers as the District Court has in those circumstances in relation to a contempt of the District Court.

Note—

Section 27(1) provides that, in the case of proceedings for contempt of the Tribunal, the Tribunal may be constituted by one or more members (being members who are the President or any other member who is a current or former NSW judicial officer).

(2)   A person is guilty of contempt of the Tribunal if the person does or omits to do anything that, if the Tribunal were a court of law having power to commit for contempt, would be contempt of that court unless the person establishes that there was a reasonable excuse for the act or omission.

(3)   Without limiting subsection (1), the Tribunal may vacate or revoke an order with respect to contempt of the Tribunal.

(4)   For the purposes of this section—

(a) sections 199, 200 and 202 of the District Court Act 1973 apply to the Tribunal and any members constituting the Tribunal in the same way as they apply to the District Court and a Judge of the District Court, and

(b) a reference in section 200 of that Act to the registrar of a proclaimed place is taken to be a reference to the principal registrar, and

(c) section 201 of that Act applies to a ruling, order, direction or decision of the Tribunal under those provisions as so applied.

Note—

Section 201 of the District Court Act 1973 (as applied by this subsection) provides for appeals to the Supreme Court against contempt decisions of the Tribunal under this section.

(5)   Without limiting the powers of the Tribunal under this section, if it is alleged, or appears to the Tribunal on its own view, that a person is guilty of contempt of the Tribunal (whether committed in the face or hearing of the Tribunal or not), the Tribunal may refer the matter to the Supreme Court for determination.

(6)   The Supreme Court is to dispose of any matter referred to it under this section in the manner it considers appropriate.

3. The application is based upon an alleged failure by the respondent to comply with Orders of this Tribunal made on 17 January 2018 in Dodge v Hacienda Caravan Park Pty Ltd (unreported Civil and Administrative Tribunal NSW Consumer and Commercial Division RC 17/33896). The applicant in these proceedings was the applicant in those proceedings and the respondent in these proceedings was the respondent. The Orders provided, relevantly that

1. The respondent is to prepare and enter into with the applicant a written site agreement in the standard form as set out in Schedule 1 of the Residential (Land Lease) Communities Act 2013 within 7 days of the date of this order

2.   Site fees payable under the agreement are to be in the same amount as are currently paid to the operator

3.   The method of increasing site fees to be the same as that used most recently to increase the site fees

4.   The commencement date of the agreement is specified to be the date of these orders.

4. In these proceedings the applicant asserts that the respondent has never prepared or entered into a written standard form site agreement as contemplated by Order 1 and is therefore in breach of that order and is accordingly guilty of contempt of this Tribunal.

5. I note that the reference to the Residential (Land Lease) Communities Act 2013 is an error. For reasons which will become clear this should have been a reference to the Residential (Land Lease) Communities Regulation 2015. I shall hereafter refer to that Regulation as “the Regulation.”

6. It is appropriate at this stage to note that the respondent instituted an appeal from the Orders made, firstly to an Appeal Panel of this Tribunal and secondly to the Supreme Court of NSW. Both appeals were dismissed. They are cited respectively as Hacienda Caravan Park Pty Ltd v Dodge [2018] NSWCATAP 108 (“the Appeal Panel decision”) and Hacienda Caravan Park Pty Ltd v Dodge [2019] NSWSC 1296 (“the Supreme Court decision”).

The evidentiary material

7. Both parties filed documents to be adduced as evidence in these proceedings. I conducted a hearing by telephone on 23 December 2020, and both parties objected to certain portions of the evidence sought to be tendered by the other.

8. By reason of the provisions of section 38 (3) (a)(i) of the CAT Act the rules of evidence apply to these proceedings.

38 Procedure of Tribunal generally

(1)   The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision.

(2)   The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

(3)   Despite subsection (2)—

(a)   the Tribunal must observe the rules of evidence in—

(i)   proceedings in exercise of its enforcement jurisdiction, and

……………………………………………………….

9. By reason of the requirement to observe the rules of evidence I precluded the applicant from relying upon an unsworn affidavit and I precluded the respondent from relying on certain survey and other material.

10. I shall refer to the material admitted into evidence in the proceedings where relevant to my reasons for decision.

The background to the making of the Orders which are the subject of these proceedings

11. The narration which follows is based upon the evidentiary material admitted into evidence and is based also upon factual material contained in the decision by which the Orders were made, the Appeal Panel decision and the Supreme Court decision.

12. The circumstances in which the applicant came to reside at the Tweed River Hacienda Holiday Park situated in northern New South Wales which was owned and operated by the respondent are succinctly summarised by McCallum J in the Supreme Court decision at [4] and following

In early 2010, Mr Dodge purchased a demountable home which was located on site 201 in the Park. The previous owners of the home, Mr and Mrs McKenzie, had been residing permanently on site 201 in accordance with a residential site agreement under the Residential Parks Act 1998 (NSW). Mr Dodge and his wife intended to do the same. However, when Mr Dodge asked at the office of the Park for a written residential site agreement, he was given a form of agreement which described the dwelling as a holiday van and purported to impose terms preventing permanent occupation of the site.

Mr Dodge refused to sign that agreement. Although he was not familiar with the relevant statutory regime at that time, his instinct was good. The form of agreement Hacienda had provided was an “occupation agreement” under the Holiday Parks (Long-term Casual Occupation) Act 2002 (NSW) rather than a “residential site agreement” of the kind the McKenzies had. If Mr Dodge had entered into the agreement offered by Hacienda, he and his wife would not have been entitled to occupy the site for more than 28 continuous nights without Hacienda’s prior permission or for more than 180 nights each year. Further, Hacienda would have been less restricted in its right to terminate the agreement than in the case of a residential site agreement under the Residential Parks Act.

After deciding not to sign an agreement in the form offered, Mr Dodge asked to speak to the “owner” of the Park but was told he was unavailable. He sought to speak to that person several further times but received no contact from him and no response to his further requests for a site agreement. In the result, no written agreement was ever entered into.

In the meantime, however, and over the many years that followed, Mr Dodge and his wife continuously occupied the demountable home on site 201. They have not sought permission to occupy it for more than 28 continuous nights and have not been asked to vacate the Park or remove the home. They have paid, and Hacienda has accepted, such rent as was due and, together with other residents of the Park, have participated, without objection by Hacienda, in proceedings in the former Consumer Trader and Tenancy Tribunal concerning rent increases in circumstances where the jurisdiction of that Tribunal was predicated on their being “residents” under a “residential tenancy agreement” (in supplementary submissions filed with leave after the hearing, Hacienda has provided additional information concerning other proceedings in the CTTT. That is addressed at the end of this judgment).

In 2015, reforms to the statutory scheme governing residential communities were enacted. With effect from 1 November 2015, the Residential Parks Act was repealed and replaced by the Residential (Land Lease) Communities Act 2013 (NSW). The objects of that Act (stated in s 3 of the Act) are:

(a)   to improve the governance of residential communities,

(b)   to set out particular rights and obligations of operators of residential communities and home owners in residential communities,

(c)   to enable prospective home owners to make informed choices,

(d)   to establish procedures for resolving disputes between operators and home owners,

(e)   to protect home owners from bullying, intimidation and unfair business practices,

(f)    to encourage the continued growth and viability of residential communities in the State.

13. At [10] her Honour observed, in part, when referring to the orders made initially by the Tribunal

I note that those orders incorrectly recorded that the agreement should be made in the standard form as set out in Sch 1 of the Residential (Land Lease) Communities Act. The proper standard form is set out in Sch 1 of the 2015 Regulations.

14. The Orders which were made by the Tribunal and which form the basis of this application for referral have their genesis in a Residential Communities application filed by the applicant in this Tribunal on 26 July 2017. That application sought an order under section 26 (4) of the Residential (Land Lease) Communities Act 2013 (“the RLLC Act”) compelling the respondent to prepare and enter into a written site agreement “in the relevant standard form prescribed” and to specify a commencement date of the agreement.

15. Section 26 (4) of the RLLC Act says

26   Site agreements generally

(1)   The operator of a community must ensure that the site agreement for a site in the community is in writing at the commencement of the agreement.

Maximum penalty—20 penalty units.

(2)   The agreement must—

(a)   identify the residential site by its number and its dimensions, and

(b)   state—

(i)   the operator’s name and address for service of documents, and

(ii)   if the operator is a company—the address of the registered office of the company, and

(iii)   if the operator is not the owner of the community—the name of the owner, and

(c)   be signed by the parties, and

(d)   comply with any other requirements prescribed by the regulations (including as to the content or form of the agreement).

(3)   If a site agreement does not comply with a requirement of subsection (2), the operator of the community is guilty of an offence.

Maximum penalty—20 penalty units.

(4)   The Tribunal—

(a)   may, on application by a home owner who was not given a written site agreement at the time occupation of the residential site commenced, order the operator to prepare and enter into—

(i)   a written site agreement in the relevant standard form, if prescribed, or

(ii)   a written site agreement that includes, or contains only, terms specified or of a kind specified by the Tribunal, if there is no relevant prescribed standard form, and

(b)   may, by the same order, specify a commencement date for the agreement that occurred before the order was made.

16. The obligation of the respondent to provide a site agreement was created by section 109 of the RLLC Act unless certain matters, specified in subsection (2), applied

109 Operator to enter new site agreement

(1)   This section applies if a purchaser or prospective home owner under a contract, or proposed contract, for the sale of the home (the sale contract) requests the operator of the community to enter into a new site agreement (the new site agreement) for the residential site with the purchaser or prospective home owner.

Note. This section is not relevant if the purchaser or prospective home owner intends to remove the home from the community.

(2)    The operator must enter into the new site agreement after the request is made, unless:

(a)    the operator declines to enter into the agreement and does so on reasonable grounds (including, for example, the ground that it appears reasonably unlikely that the sale contract will be entered into), or

(b)    without limiting paragraph (a), the operator and the purchaser or prospective home owner do not agree on the terms of the proposed agreement.

.....

(7)    The operator must not unreasonably delay or refuse to enter into a new site agreement referred to in subsection (2).

17. Section 12 of the RLLC Act provides that contracting out of the obligations under that legislation is prohibited.

18. The proceedings before the Tribunal at first instance dealt comprehensively with submissions and counter submissions brought by the parties as to whether the Holiday Parks Act or the former Residential Parks Act (which by then had been repealed and replaced by the RLLC Act) applied to the circumstances by which the applicant had been residing in the demountable home on site 201. After considering the factual background, the provisions of both statutes and the transitional provisions of the RLLC Act the Member determined that an agreement had been concluded between the parties by which the applicant was entitled to occupy the site, that a site agreement was taken to have commenced on the date that the RLLC Act commenced and that section 26 of that Act required the respondent as the operator of the community to ensure that the site agreement was in writing. The Member noted that there was a prescribed standard form of site agreement prescribed by clause 6 of the Regulation, being in the form of Schedule 1. The Member said

The standard form contains all necessary terms, except the commencement date, the site fees payable, and the method of increasing the site fees.

In the circumstances there should be an order the respondent prepare and enter into a site agreement with the applicant in the standard form. The commencement date shall be the date of these orders, the site fees shall be the current amount, and the method of increase shall be that which was applied at the time of the most recent increase.

19. The above are the reasons by which the Member determined to make the Orders the alleged non-compliance with which is the subject of these proceedings.

20. In its appeal to the Appeal Panel from this decision the respondent submitted that the Member had erred in law in finding that there was an agreement between it and the applicant and in the alternative, on a ground not argued before the Member, that the agreement was not of a kind which attracted the transitional provisions of the RLLC Act. It is not necessary for the purpose of these proceedings to traverse the reasons of the Appeal Panel in dismissing both submissions and dismissing the appeal. It is sufficient to note that the submissions raised complex questions of law and that the respondent was represented by counsel and a solicitor. The respondent was also so represented in the first instance proceedings before the Member.

21. The respondent then brought an appeal to the NSW Supreme Court from the decision of the Appeal Panel which was restricted to a question of law and required the leave of the Court. Those appeal proceedings covered much of the same ground occupied by the proceedings before the Appeal Panel. However, the respondent introduced variations on the arguments adduced before the Appeal Panel. McCallum J upheld the decision of the Appeal Panel “albeit on the strength of a different analysis of the questions of law raised.” Her Honour held that there was an agreement between the applicant and the respondent which was a residential site agreement for the purpose of the RLLC Act.

22. At [76] her Honour said

For those reasons, I make the following orders:

(1)   Grant leave to appeal.

(2)   Dismiss the appeal with costs.

(3) Note that the form in which the site agreement should be entered into in accordance with order 1 of the Civil and Administrative Tribunal is the standard form as set out in Sch 1 of the Residential (Land Lease) Communities Regulation 2015 (NSW).

23. In those Supreme Court proceedings, the respondent as appellant was represented by senior and junior counsel and solicitors.

23. I add that arguably any contempt following the failure of the respondent to comply strictly with the time limited for compliance with Order 1 can reasonably be excused in the short term because of the appeal proceedings initiated by the respondent. The decision of McCallum J was published on 15 October 2019.

Communications between the parties prior to and after the finalisation of all proceedings

The respondent’s letter of 27 November 2017

25. For reasons which I shall later develop, correspondence from the respondent to the applicant dated 27 November 2017 which is the same day upon which the hearing of the applicant’s Application was heard at first instance is arguably of significance in determining these proceedings. The letter said that “It has been brought to our attention that there may be an issue regarding the structures located on the (site)”. The respondent said that it was the responsibility of the applicant to ensure that the structures complied with certain statutory requirements, being the Local Government Act 1993, and the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Movable Dwellings) Regulations 2005. The respondent asked the applicant to provide a survey plan identifying

the dimensions, description, size and location of all the structures located on the above site (including but not limited to the movable dwelling, rigid annexe, carport, shed, veranda, deck etc), the distances from the structures on the site to the structures on adjoining sites and the distance from the structures on the site to the roadway.

26. Furthermore, the letter asked that the applicant

identify and provide complete details of the compliance plate(s) relevant to the structures located on the above site (i.e. movable dwellings, rigid annexe, carport etc)

27. There is no record of the applicant having replied to this letter, nor to a follow-up letter of 22 March 2019.

28. I note that these matters were in the mind of the respondent’s representatives as at the first day of the hearing of the applicant’s original application. These matters do not appear to have been raised before the Member at the hearing, nor before the Appeal Panel or the Supreme Court as matters which might bear some significance on compliance with the orders sought by the applicant in the original proceedings, because there is no mention of them as having been raised by the respondent, or at all, in any of the reasons for decision. I shall return to this matter later.

The respondent’s letter of 22 November 2019

29. The respondent forwarded a detailed letter to the applicant dated 22 November 2019. This letter no doubt originated in response to the decision of 15 October 2019 dismissing the appeal to the Supreme Court. Its contents are of significance for the determination of these proceedings.

30. The letter referred to a request from the applicant “for a residential site agreement” and then referred to a number of attached documents being “a disclosure statement, site condition report, NSW Fair Trading Moving into a land lease community brochure, sample site agreement and community rules”.

31. The letter stated that a site agreement was “a very important document”, involved “a major commitment” and because it was in effect “a perpetual lease that can only be terminated in a very limited number of circumstances” said that it was “essential that the structures owned by you and installed on the site comply in all respects with all the statutory legislation with which they are required to comply.” The letter then went on to refer to the requirement imposed on the applicant as owner to ensure that the structures were in compliance with the legislation and to ensure that the respondent as the park operator was not in breach of its requirements including requirements of the “Tweed Shire Council approval to operate, its insurance covenants and workplace health and safety obligations.”

32. The letter then referred to a number of Clauses contained within the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Movable Dwellings) Regulation 2005 with which all of the structures installed on the site and owned by the applicant were required to comply “in all respects”. The letter set out the contents of each of the Clauses contained within this Regulation. For present purposes it is only necessary that I identify each of the Clauses referred to by number and subject heading

Clause 91 Separation Distances

Clause 161 Setbacks

Clause 162 Site coverage

Clause 163 Maintenance

Clause 165 Running Gear

Clause 166 Structural Soundness

Clause 167 Design gust wind speed

Clause 168 Glazing

Clause 169 Floor Area

Clause 170 Installation of Rigid Annexe

Clause 171 Wind resistance

Clause 172 Compliance plates to be attached

33. The letter next said “To enable the park operator to insert all the material particulars in the proposed site agreement prior to tendering the document to you for signature the following is required……..” The letter then said that in compliance with this requirement the applicant should provide two copies of the following documents, the description of which I shall summarise in the following terms

•   a survey plan of the structures located on the site showing site boundaries, the measurements of all of the structures and the distances of each of them from side boundaries, adjoining sites and calculation of percentage of site coverage. Each structure is to be separately identified and measured. Furthermore the surveyor was to certify that the relevant structures complied with Clauses 91, 161, 162 and 169 of the Regulation

•   a report from a licensed and qualified engineer or building certifier certifying that the structures on the site complied with Clauses 163, 166, 167, 168, 170, 171 and 172 of the Regulation. The report was also to refer to any relevant running gear in the nature of wheels, axles and drawbar as being in a proper working order

•   a Gas Inspection Certificate from a licensed and qualified certifier for any gas installation

•   dated colour photographs of compliance plates relating to the structures and any gas appliances

•   certification from a licensed electrician that the electrical cord connecting the caravan or structures had been tested and tagged, or a copy of a current certification not more than 12 months old

•   letters from the local Council authority showing that associated structures have been approved and the conditions of those approvals

•   dated colour photographs showing the north, south, east and west elevations of all of the structures located on the site

•   dated colour photographs showing each of the plants and trees located on the site

•   a diagram showing the location of each of the plants and trees growing on the site, their horticultural species name, their current size and projected maximum height and size

•   a declaration that a compliant working smoke alarm is fitted in the dwelling

34. The letter also asked the applicant to provide his contact phone number in writing. The letter then said that all of that information was required to be provided “to the satisfaction of the park operator”, that the documents and photographs must be not more than 30 days old at the time of preparation of the “proposed site agreement”, and that they would be annexed to form part of “the proposed site agreement.” Furthermore, the letter stated that any noncomplying structures would be required to be rectified, altered, modified or repaired to the satisfaction of the park owner to ensure current compliance within 60 days, and if this was not complied with, they would be required to be removed within 30 days and the applicants vacate the premises within a further 14 days.

35. Lest there be any doubt about the tenor of what was being proposed by the respondent in this letter I set out the contents of two paragraphs which followed the material which I have summarised above

The proposed site agreement is not capable of being signed by both parties or entered into in good faith until all of the information requested is provided to the satisfaction of the park operator. Furthermore, the operator is unable to provide or submit to the home owner an incomplete document.

If the operator and the homeowner do not agree on the terms of the proposed site agreement, the parties will not be in a position to enter into the proposed site agreement.

36. Finally, the letter referred firstly to an undertaking given by the previous owners to remove a caravan and rigid annexe from the site once their agreement had come to an end, and secondly noted that the information requested in the letters of 27 November 2017 and 22 March 2019 had not been provided.

37. The applicant together with a Ms Beryl Clarke wrote to a Mr John Willmott said by them in the letter to be a Director of the respondent on 2 December 2019. They referred to the notation to the order of McCallum J in the Supreme Court that the site agreement should be entered into in accordance with Order 1 made by the Tribunal at first instance, namely in the standard form set out in Schedule 1 of the Regulation. The letter asserted that the respondent was in breach of that order because there were no preconditions or “conditionality” attaching to the order. The letter said that “there are no alterations or additions made to our home on site 201 since March 2010 when we moved into our home”. The letter also denied that there was any caravan or rigid annexe situated on the site as asserted at the end of the respondent’s letter of 22 November 2019. The letter noted that the “sample document” being a form of residential site agreement was not in compliance with Schedule 1 and asked that a signed site agreement in standard form be provided without delay.

38. On 9 December 2019 the respondent replied to the applicant’s letter of 2 December 2019 inter alia refuting the terms of the site agreement applying to the previous owners. Significantly that letter stated that

The sample site agreement provided to you is Tweed River Hacienda Holiday Parks current standard form site agreement which contains additional terms permissible in accordance with the statutory legislation and complies with the RLLC Act 2013 and the RLLC Regulations 2015

We are of the opinion that the additional terms are not inconsistent, nor contrary to the legislation and they are also not unlawful.

The jurisdiction and powers of the Tribunal in making the Orders

39. The basis for the application brought under section 73 of the CAT Act is non-compliance with the Orders of this Tribunal set out in [3] above. The provisions of the RLLC Act which bestow jurisdiction and power on this Tribunal to have made those orders are found in sections 156 and 157. It is neither appropriate nor necessary that I examine these provisions. Prima facie the orders are to be given their full force and effect, the respondent having exhausted all means chosen by it to challenge them. I shall proceed accordingly.

The obligations of the respondent under the Orders

40. In their terms the Orders required the respondent to “prepare” and “enter into” a written site agreement with the applicant within 7 days of 17 January 2018. The agreement was to be in “the standard form” as set out in Schedule 1 of the Regulation. The site fees and the method of increasing them are described in terms which are capable of being ascertained, and neither party has submitted to the contrary.

41. The applicant asserts that the respondent has not prepared a written site agreement as required by Order 1. The respondent submits that it is required by section 21 of the RLLC Act to provide a disclosure statement 14 days prior to entering into the agreement.

21   Disclosure statement required before entry into site agreement

(1)   The operator of a community must not enter into a site agreement with a person unless the operator has provided the person (or another person acting on behalf of that person) with a disclosure statement relating to the particular residential site at least 14 days before entering into the agreement.

Maximum penalty—100 penalty units.

Note—

This requirement extends to a case where the operator is entering into a new site agreement with an existing home owner.

(2)   The disclosure statement is to be in the approved form and is to include—

(a)   details of the fees and charges that will be payable under the proposed site agreement for the particular residential site, and

(b)   details of the current range of site fees paid in the community, and

(c)   details of the services and facilities available in the community, and

(d)   details of compliance with statutory requirements applying to the community.

(3)   A disclosure statement is to be signed and dated by the operator.

(4)   The Tribunal may, on application by a prospective home owner, make an order requiring the operator of a community to provide a disclosure statement if—

(a)   a residential site in the community is available for occupation by the prospective home owner, and

(b)   the operator fails to provide a disclosure statement in relation to the residential site to the prospective home owner within 14 days after a request for the statement is made.

Based on this requirement, the respondent submitted that the terms of the order rendered it impossible to comply with section 21.

42. I reject the reliance of the respondent on this submission. Firstly, it is arguable that the provisions of the Order would override the statutory requirement because this Tribunal is given wide powers in the settlement of disputation between parties as provided for in sections 156 and 157 of the RLLC Act. Secondly, the respondent should not be permitted to now raise this matter as an argument directed to its ability to comply with the order, this matter not having been raised at least before the Appeal Panel and the Supreme Court in terms which required either to deal with it.

43. Furthermore, by the time the proceedings came before the Tribunal the time for providing disclosure documents and a cooling off period had long since passed. The Tribunal had found that there was a site agreement in existence between the parties. This was confirmed by the Appeal Panel and the Supreme Court. The applicant was intent on securing a written site agreement to consummate his contract to purchase a long-term residency after being denied that opportunity over many years. The respondent had steadfastly declined to provide him with such an agreement, notwithstanding that this placed the respondent in breach of the provisions of the RLLC Act. (Section 26(1) requires that there be a written site agreement). The Orders of the Tribunal were directed to reducing that agreement into written form.

44. In the same vein, the respondent submitted that it was necessary for it to ensure compliance with the various pieces of legislation which it had identified in its correspondence with the applicant before it would be comfortable in issuing a site agreement. I do not apprehend that this submission is directed to the validity of the order, but rather to the respondent’s justification for having failed to comply with it.

45. The remainder of the respondent’s submissions are directed to whether the form of “sample site agreement” submitted by the respondent with its letter of 22 November 2019 complied with the provisions of the Order, and also whether the contents of the sample site agreement in their totality were such that the respondent was justified in requiring the applicant to accept them. In considering this matter I note that the basis upon which the “sample site agreement” was provided was subject to compliance by the applicant with a number of preconditions. I have referred to them in [33] above.

46. I do not regard the assertion by the respondent that it will not provide any form of site agreement without compliance with the preconditions set out in the letter of 22 November 2019 as complying in any way with the provisions of Order 1. There is nothing contained in that Order which would permit the respondent to fail to provide a site agreement unless these conditions had been complied with. The terms of the Order are clearly addressed to the provision of a site agreement as described. They do not permit the conduct of the respondent in refusing to issue a site agreement unless the preconditions set out in that letter have been complied with. The stance taken by the respondents is prima facie one which is inconsistent with the terms of Order 1.

47. In addition, these are matters which could have, and should have been addressed by the respondent in the course of the proceeding before the Tribunal at first instance, before the Appeal Panel and before the Supreme Court. In all of those matters the respondent was represented by counsel and solicitors. At all material times the respondent had available to it the ability to seek legal advice about whether any standard documentation which it used, and whether any standard preconditions which had to be satisfied before a site agreement was issued would create difficulties for it if the orders sought by the applicant were made.

48. Prima facie this conduct would justify referral to the Supreme Court, subject to any consideration of whether the respondent has established that there was a reasonable excuse for its failure within the provisions of section 73 (2) of the CAT Act, which I shall shortly consider.

The form of the site agreement referred to in Order 1

49. As it cannot be said that the provision of this form of “sample” site agreement which accompanied that letter could in any way constitute compliance with the terms of the Orders, the relevance of the controversy concerning the contents of the site agreement must be confined to a consideration of whether or not the respondent had a reasonable excuse for having failed to comply with the Orders, as provided for in section 73 (2) of the CAT Act.

50. In order to consider whether the form of the sample site agreement may have constituted compliance with Order 1 it is necessary to set out the terms of the standard form of site agreement identified in that Order

Residential (Land Lease) Communities Regulation 2015, Schedule 1

Important information

1   This site agreement applies to a site in a residential community that is to be used as a residence by a home owner. Do not use this agreement for homes owned by long-term casual occupants or homes owned by the operator that are to be let to tenants.

2   You have the right to be given time to read this agreement and to obtain independent legal, financial or other advice before signing it.

3 This is a residential community, not a retirement village, and this site agreement is regulated by the Residential (Land Lease) Communities Act 2013.

4   Occupation of the residential site is a leasehold right only. This agreement may, in limited circumstances set out in the Act, be terminated.

5   If this agreement specifies a fixed term, your lease does not expire when that fixed term ends and you may continue to live at the residential site until this agreement is terminated in accordance with the Act.

6   The Act gives you a 14-day cooling-off period from when you enter into this site agreement during which time you may rescind the agreement for any reason without penalty or compensation being payable to any person. See the standard terms of this agreement for further details.

7   You should make sure that the details contained in the disclosure statement are the same as in this agreement, where relevant.

8   You are entitled to receive a copy of this agreement free of charge, once it has been signed by both parties.

9   Information about your rights and responsibilities under this agreement or the Act is available at or by calling NSW Fair Trading on 13 32 20.

Details of the parties

Operator name/s—

Operator contact phone number/s—

Trading name and address of residential community—

Address for service of documents to operator (if different from community address)—

Email address of operator (if any)—

Does the operator accept notices via email? □ Yes □ No

Registered office address (if the operator is a company)—

Name of owner/s of the community (if different from operator)—

Home owner name (1)—

Home owner name (2)—

Home owner contact phone number—

Site number: Site dimensions (attach plan if necessary)—

Address for service of documents to home owner/s (if different from site address)—

Email address of home owner/s (if any)—

Does the home owner accept notices via email? □ Yes □ No

Site fees

Your site fees are: $ or % of the age pension

Payable: □ Weekly □ Fortnightly □ Monthly Starting on: / /

Your site fees must be paid using any of the following methods (tick all those available)—

□ by cash/cheque/EFTPOS/credit card to the office located on-site (cross out any method that is not available)

□ by deposit/transfer into the following account—

BSB—

Account number—

Account name—

Payment reference—

□ by direct debit

□ Centrepay

□ BPAY Biller Code: Payment reference—

□ other (specify)—

Site fee increases

We may increase your site fees as follows (select only ONE option)—

□ Fixed method—

□ Notice (non-fixed) method—

Your site fees will be increased (select only ONE option)—

□ in proportion to variations in the CPI

□ by $

□ by %

□ by % of the increase to the single / couple (cross out whichever is not applicable) age pension, each time the pension increases

Note—

If your site fee increases are linked to increases in the age pension, your site fees will increase ONLY by the percentage of the age pension increase specified above.

□ other (specify)

Note—

The methods listed above are negotiable.

The first increase will be on: / /

For any method other than increases linked to the age pension, after the first increase, increases will occur every: months / years (cross out whichever is not applicable)

We are required to give you at least 14 days’ written notice of any increase using this method.

This fixed method will apply for (select only ONE option)—

□ the duration of your occupancy

□ years—after which the “Notice (non-fixed) method” will apply, unless another fixed method or a new site agreement is agreed between you and us.

We may propose an increase to your site fees from time to time (no more than once in any 12-month period).

We are required to give you, and all other home owners not on fixed method increases, at least 60 days’ written notice of the proposed increase with an explanation for the increase.

We may cancel or reduce the proposed increase by a later notice that takes effect on the same day as the original notice.

If 25% or more of affected home owners oppose the proposed increase the dispute will go to compulsory mediation and, if that fails, to the Tribunal to decide what the site fees should be.

Term of agreement

Your right under this agreement to occupy the residential site continues until this agreement is terminated in accordance with the Act, whether or not the fixed term period specified below (if any) has expired.

Fixed term (if any): years

Note—

If a fixed term is specified it must be for more than 3 years.

Starting on: and ending on—

Standard terms

Right to occupy the residential site

1.   We grant you the right to occupy the residential site specified in this agreement.

2.   Your right to occupy begins on the day your site fees are first due, or as otherwise agreed between you and us.

3.   We agree—

3.1   to ensure that the residential site is in a reasonable condition and fit for habitation, so that you can move in on the date agreed, and

3.2   to take all reasonable steps to ensure that, at the time of signing this agreement, there is no legal reason why the residential site cannot be used as a residence.

Cooling-off period

4.   We agree that—

4.1   you are entitled to rescind this agreement by serving on us notice in writing to that effect within 14 days of signing this agreement (the cooling-off period), subject to clause 5 of this agreement, and

4.2   on service of notice of rescission, this agreement is taken to be rescinded from the commencement of the agreement, and

4.3   you are entitled to rescind any collateral agreement between you and us, such as a contract for sale of a home, within the cooling-off period.

5.   You agree that your right to rescind this agreement within the cooling-off period ends if you start to reside in a home located on the residential site, or cause a home to be placed, installed or erected on the residential site, before the end of the cooling-off period.

Site fees

6.   You agree to pay—

6.1   your site fees on time and in advance, and

6.2   any increase in site fees in accordance with this agreement and the Act, from the due date.

7.   We agree—

7.1   to provide you with at least one means of paying your site fees for which you do not incur a cost (other than bank fees or other account fees usually payable by you for your transactions) and that is reasonably available to you, and

7.2   not to require you to pay more than 2 weeks’ site fees in advance or to pay site fees (other than the first payment) for a period of this agreement before the end of the previous period for which site fees have been paid, and

7.3   not to use site fees paid by you to cover utilities or any other amount payable by you other than site fees, and

7.4   to give you a receipt without delay for site fees paid in person or to give you a receipt at your request for site fees not paid in person, and

7.5   not to increase your site fees otherwise than in accordance with this agreement and the Act.

Utilities

Where we are the supplier or re-supplier of a utility to your residential site, clauses 8–10 apply.

8.   You agree to pay to us utility charges in connection with the site where either or both of the following apply—

8.1   your use of a utility (other than for sewerage) is separately measured or metered,

8.2   a charge for your use of a utility for sewerage is calculated in accordance with the regulations.

9.   We agree—

9.1   to give you an itemised account of utility charges due and payable and allow you at least 21 days to pay the charges, and

9.2   to discount the service availability charge payable by you for electricity if less than 60 amps are supplied to the residential site, in accordance with the regulations, and

9.3   to comply with all obligations placed on us under the Retail Exempt Selling Guideline of the Australian Energy Regulator, and

9.4   to give you reasonable access to bills or other documents in relation to utility charges payable by you to us, and

9.5   to give you a receipt, without delay, for utility charges paid in person, or at your request for utility charges not paid in person.

10. We agree not to charge you any of the following—

10.1   an amount for the use of a utility that is more than the amount charged by the relevant utility service provider for the quantity of the service supplied to, or used at, the residential site,

10.2   a service availability charge that is more than would be charged by the relevant utility service provider, if the service was supplied directly to you by the relevant utility service provider, divided by the number of sites in the community (subject to clauses 10.3 and 9.2 of this agreement),

10.3   an amount more than $50 in total each calendar year for both water and sewerage service availability.

Payment of other charges

11.   We agree to pay—

11.1   all rates, taxes and other charges payable by us or the owner of the community, and

11.2   the cost of installing any measuring devices or meters to measure the use of utilities.

12.   You agree to pay—

12.1   a refundable deposit of $ (maximum $25) for a key or any opening device issued to you to access the community, and

12.2 the cost of registering or recording this agreement under the Real Property Act 1900, where this agreement has a fixed term of more than 3 years, and

12.3   any other fees, charges and deposits required to be paid by you by the Act or the regulations.

Quiet enjoyment

13.   We agree that we will not unreasonably restrict or interfere with, or permit any unreasonable restriction or interference with, your privacy, peace and quiet, or proper use and enjoyment of the residential site and the community’s common areas.

14.   You agree not to interfere with, and to ensure as far as practicable that other occupants living with you, or your guests, do not interfere with, the reasonable peace, comfort or privacy of the community’s residents.

Use of residential site and common areas

15.   You agree—

15.1   to use the residential site only as a place of residence, except so far as we consent to its use for another, or an additional, purpose, and

15.2   to use the community’s common areas only for a purpose associated with your use of the residential site, and

15.3   not to use, or allow other occupants living with you, or your guests, to use, the residential site or the community’s common areas for an illegal purpose.

Access to residential site

16.   We agree, while this agreement is in force, to only enter the residential site or your home in the following circumstances—

16.1   with your consent, so long as that consent is given at the time of entry or no more than 14 days before entry,

16.2   in an emergency, so long as entry is needed to avert danger to life or valuable property,

16.3   in a case where electricity, water or gas is supplied to you by us—to inspect, read, service, repair or replace any electricity, water or gas meter located on the residential site,

16.4   to comply with an obligation under the Act or other legislation, so long as (subject to the legislation concerned) at least 2 days’ notice has been given to you,

16.5   for the purpose of lawn or grounds maintenance, so long as you agree and entry is made at a reasonable time and on a reasonable number of occasions,

16.6   in accordance with an order of the Tribunal.

17.   We agree when exercising a right of entry—

17.1   not to act in an unreasonably intrusive manner, and

17.2   not to enter a part of the residential site or home to which entry is not reasonably required for the purpose for which the right of entry is being exercised, unless we have your consent, and

17.3   not to remain on the residential site or in your home longer than is reasonably necessary for the purpose for which the right of entry is being exercised, unless we have your consent.

Access to the residential community

18.   We agree to take all reasonable steps to ensure that—

18.1   you always have access to the residential site and reasonable access to the community’s common areas, and

18.2   we are, or a representative of us is, available to be contacted at reasonable times, having regard to all the circumstances, including the utilities supplied by us, and

18.3   tradespersons and service providers have access to your home to provide goods and services arranged by you, and

18.4   emergency and home care service personnel have unimpeded vehicular access to your home at all times, and

18.5   the roads and residential sites in the community are signposted, or a map is placed at each entry to the community, in a way that provides adequate information to enable emergency and home care personnel to locate your home.

Maintenance of residential site and common areas

19.   You agree—

19.1   to maintain (subject to fair wear and tear) the home located on the residential site in a reasonable state of cleanliness and repair, and so as to be fit to live in, and

19.2   to keep the residential site tidy and free of rubbish, and

19.3   not to intentionally or recklessly damage or destroy, or allow other occupants living with you, or your guests, to intentionally or recklessly damage or destroy, the community’s common areas, and

19.4   to notify us as soon as practicable of any damage to the residential site or any damage to the community’s common areas caused or permitted by you, other occupants living with you, or your guests, and

19.5   not to plant a tree, or authorise a tree to be planted, in the community without our consent.

20.   We agree—

20.1   to ensure that the community is reasonably safe and secure, and

20.2   not to intentionally or recklessly damage or destroy any of your property, or property of other occupants living with you, or of your guests, and

20.3   to ensure, to the extent within our control, the continuity of supply of utilities to the residential site, and

20.4   to maintain the community’s common areas in a reasonable state of cleanliness and repair, and so as to be fit for use by you, and

20.5   to take reasonable steps to keep the community’s common areas reasonably free of noxious weeds and vermin, and

20.6   to ensure that all trees in the community are properly maintained and take reasonable action if you or another home owner report that a tree has caused or is likely to cause injury to a person or damage to property.

Alterations and additions

21.   Unless we give our written consent or unless this agreement otherwise provides, you agree—

21.1   not to make any alterations to the exterior of the home (other than painting or minor repairs), and

21.2   not to add a fixture to the residential site, and

21.3   not to replace your home with another home.

22.    We agree not to unreasonably withhold or refuse consent for any request to do any of the things set out in clauses 21.1–21.3 but we reserve the right to give consent with reasonable conditions.

Sub-letting

23.   We agree that you may, with our written consent, enter into a tenancy agreement for, or otherwise sub-let, your home.

24.    We agree not to unreasonably withhold or refuse consent for any request to enter into a tenancy agreement for, or otherwise sub-let, your home, so long as any such agreement is proposed to be entered into or granted once only during any 3-year period in which the site agreement has effect and is for a term of 12 months or less.

Services and facilities

25.   We agree—

25.1   to maintain all services and facilities required by the development consent for the community to be available for the life of the community, and

25.2   to give you or the residents committee (if there is one) 30 days’ notice if we propose to remove or substantially restrict a facility or service required by the development consent or otherwise available for the community or if we propose to provide a new facility or service for the community.

Sale of home

26.   We agree—

26.1   to allow you to sell your home while it is located on the residential site, and

26.2   to allow you to display a “for sale” sign in or on your home, provided you notify us of your intention to offer the home for sale, and

26.3   not to cause or permit interference with, or any attempt to interfere with, your right to sell your home or your right to display a “for sale” sign in or on your home, and

26.4   to enter into a new site agreement with the purchaser of your home, unless we have a reasonable excuse not to (for example, if we and the purchaser do not agree on the terms of the proposed agreement), and

26.5   not to unreasonably delay, or refuse to enter into, a new site agreement with the purchaser.

27.   You agree—

27.1   to give us notice of your intention to offer your home for sale before offering it for sale, and

27.2   to only display a “for sale” sign in or on your home and not anywhere else in the community unless we consent, and

27.3   to ensure that a genuine purchaser of your home is advised to contact us about the proposed sale before a contract for the sale of the home is entered into.

General obligations

28.   We agree—

28.1   to establish and maintain reasonably accessible and reasonably secure mail facilities, and

28.2   not to access or interfere with your individual mail facilities, except with your consent, and

28.3   to have in place emergency evacuation procedures and take reasonable steps to ensure that you are aware of these procedures, and

28.4 to comply with all legislative obligations relating to the community, including but not limited to any regulations under the Local Government Act 1993.

29.   You agree—

29.1   to respect our right to work in an environment free from harassment or intimidation, and

29.2   not to act in a manner that adversely affects the health and safety of persons working in the community, and

29.3   to notify us before the residential site is to be left unoccupied for more than 30 days or, if you are not able to give notice before leaving the residential site, as soon as is reasonably practicable after leaving it.

Change in operator details

30.   If our name or address changes, we agree to give you a notice stating the new name or address within 14 days after the change.

Definitions, interpretation and operation of this agreement

31.   In this agreement—

age pension means the age pension payment made under the Social Security Act 1991 of the Commonwealth.

regulations means the regulations made under the Act.

the Act means the Residential (Land Lease) Communities Act 2013.

Tribunal means the Civil and Administrative Tribunal of New South Wales.

we, us or our refers to the operator and where the context allows, its employees and agents. If there is more than one operator, the words “we”, “us” or “our” apply jointly to the operators and to each of them.

you or your refers to the home owner and includes his or her executors, administrators or agents but only to the extent necessary to enable them to discharge their duties, and where the home owner is more than one person, the words “you” or “your” apply jointly to the home owners and to each of them.

Words that are not defined in this agreement but which have a defined meaning in the Act have the same meaning in this agreement as they do in the Act.

32.    This agreement operates as follows—

32.1   this agreement has effect subject to the Act and the regulations,

32.2   any term of this agreement is to be read and interpreted in the context of, and subject to, any relevant provision of the Act and the regulations,

32.3   this agreement gives way to the Act and the regulations to the extent of any inconsistency between this agreement and the Act and the regulations.

33.   If the Act or the regulations are amended after this agreement was entered into, the amendment applies in relation to this agreement, unless the legislation making the amendment provides otherwise. This extends to the repeal and substitution of the Act or the regulations.

Notes—Termination of agreement

1   You may terminate this agreement by giving us at least 30 days’ written notice, and may move your home off the residential site at any time after giving us that written notice, in accordance with the Act.

2   We may only terminate this agreement in one or more of the following circumstances and in accordance with the Act—

(a)   if you seriously or persistently breach this site agreement,

(b)   if we require vacant possession of the residential site in order to comply with an obligation imposed by or under legislation to carry out works (including works in the nature of repairs or upgrading) within the residential site or community,

(c)   if the community is to be closed,

(d)   if there is to be a change in the use of the residential site,

(e)   if the residential site is appropriated or acquired under legislation of the State or Commonwealth by compulsory process authorised by that legislation,

(f)   if the site is not lawfully useable for the purposes of a residential site,

(g)   if the residential site has not been used for the past 3 years (and any further period not exceeding 3 years agreed to by you and us) as your place of residence or another person’s place of residence (with our prior consent),

(h)   for serious misconduct, following an application to the Tribunal.

3   In certain circumstances, if we terminate your agreement you may be entitled to compensation as prescribed by the Act.

Additional terms

NOTE—

ANY ADDITIONAL TERMS ARE NOT REQUIRED BY LAW AND ARE NEGOTIABLE BEFORE YOU SIGN THIS AGREEMENT.

Additional terms may be inserted below, but only if—

(a)   they do not contravene the Act or regulations or any other law, and

(b)   they are not inconsistent with the standard terms contained above.

WARNING. It is against the law to insert any terms in this agreement which operate to annul, vary or exclude any provisions of the Act or the regulations (see section 12 of the Act). Terms prohibited by the regulations also cannot be added to this agreement.

Signed by or on behalf of the operator

Name of operator/person signing on their behalf—

Signature of operator/person signing on their behalf—

Date—

Acknowledgment by home owner

The home owner acknowledges that they have been given a copy of each of the following documents.

Do not sign this agreement if you have not been given all of the required documents.

The home owner must initial each box below to indicate they have received the document—

□ Disclosure Statement (at least 14 days before entering into this site agreement)

□ Site Condition Report

□ A current copy of the Community Rules (if any)

□ Moving into a Land Lease Community? brochure published by NSW Fair Trading

Legal Advice (select only ONE)

□ I have obtained independent legal advice before signing this agreement

□ I have decided not to obtain independent legal advice before signing this agreement

Signed by home owner (1)

Name of home owner (1)—

Signature of home owner (1): Date—

Signed by home owner (2)

Name of home owner (2)—

Signature of home owner (2): Date—

51. I note that the above standard form site agreement set out in Schedule 1 contains 33 clauses together with provisions relating to termination. The clauses include a number of comprehensive provisions and are clearly intended to deal with a number of reasonably foreseeable contingencies.

52. Significantly, the standard form site agreement set out in the Schedule contains the following notation

ANY ADDITIONAL TERMS ARE NOT REQUIRED BY LAW AND ARE NEGOTIABLE BEFORE YOU SIGN THIS AGREEMENT.

53. The respondent submitted that Order 1 was silent regarding the inclusion of additional terms, which are contemplated in the form set out in the Schedule. It said that it was not obliged to provide a signed site agreement unless it contained all material terms, including the additional terms it required to be included.

54. However, whilst there is reference to the inclusion of additional terms in the standard form, it clearly provides that those terms are “negotiable”. As such they must be negotiated and thereby become the subject of agreement. I note that there is no agreement between the parties about any additional terms.

55. Each page of the proposed form of residential site agreement submitted with the letter of 22 November 2019 was engrossed with the words “sample document only.” The form of agreement was described as a “proposed agreement”. It provided for a fixed period lease of 5 years only. It contained 38 “additional and further terms.” They include matters of the following kind

1. security deposit for electricity and gas charges

2. restrictions on the installation of any home or replacement to comply with operator’s requirements

3. payment of statutory charges

4. the provision of an indemnity for any damage caused to the property or person of others

5. requirement to maintain the home and structures to a condition satisfactory to the operator

6. restrictions on alterations, additions and extensions

7. refund of bonds

8. prohibition on digging or excavation on-site

9. restrictions on facilities to be provided by the operator

10. prohibition of holiday lettings

11. prohibition on use of social media to disparage the operator

12. agreement to allow the operator to install surveillance devices other than in shower and toilet areas

13. agreement to comply with community rules

14. not to sublet without consent of the operator

15. assumption of responsibility for the conduct of children or occupants

16. not to keep pets, poultry or animals on the site except as permitted by community rules or the law

17. the regulation of disposal of garbage

18. prohibition on use of any vehicle in a dangerous manner and restriction on ability to park vehicles, boats or trailers

19. prohibition on use of bikes and skateboards unless permitted by community rules

20. requirement to keep lawns and gardens neat and tidy and prohibition against installing a garden without prior consent of operator

21. responsibility for preservation of landscaping of sites and home including compliance with landscaping code or building code published by the operator from time to time

22. acknowledgement that property erected on the site must comply with all statutory requirements listed in detail in the clause

23. not to sell the property without first advising a purchaser to contact the operator

24. to remove all structures from the site at the termination of the agreement

25. to advise the operator if the homeowner is on life-support equipment and to provide a medical certificate for approval by the operator

26. the provision of a general indemnity in favour of the operator

27. requirement to comply with all directions of the operator regarding compliance with Work Health and Safety legislation

    56. As I have previously indicated, the respondent said that it would not enter into a form of site agreement with the applicant unless it contained all of the above additional terms as well as being satisfied concerning the additional matters referred to at [33] above.

    57. The applicant asserts that compliance with the terms of the Orders is restricted to the preparation of a form of site agreement for a long-term lease, strictly in the form contained in the Schedule to the Regulation, with its completion restricted to provisions relating to the details of the parties, the identification of the site, and the various matters relating to the fixation of charges identified within the terms of the orders. It is said by the applicant that the terms of the Order 1 do not permit the inclusion of the additional terms proposed by the respondent which can only be included by agreement and no such agreement exists. The contrary argument put forward by the respondent is that it is, in some way, bound by law to include the additional provisions, and a failure to do so would expose it to a breach of these legislative requirements.

    58. I consider that the reference to additional terms contained in the form of site agreement set out in Schedule 1 of the Regulation as being “negotiable” and therefore subject to negotiation must result in their inclusion only by way of agreement reached by both parties. This supports the position contended for by the applicant. There is no reference in the reasons for decision of the Tribunal at first instance or the Appeal Panel or in the Supreme Court to any suggestion made by the respondent that it would have additional requirements of the kind referred to in the additional terms which the respondent unilaterally sought to impose as contained in the form of sample site agreement enclosed with its letter of 22 November 2019.

    59. Even if this were not the case, the provisions of Order 1 do not contemplate in their terms the addition of clauses yet to be the subject of agreement. The Orders were made following upon a finding that an agreement between the parties already existed, and which was required to be reduced to writing. What was contemplated by Order 1 was clearly a form of written agreement which reflected that contained in the Schedule, save for the addition only of those matters which I set out in [40]. There is a mechanism to enable these matters to be ascertained, and the respondent has not made any submissions or provided any evidence which would preclude it from completing the form for submission to the applicant with these terms included in it and without including the additional terms sought by it.

Conclusions as to whether the respondent is in breach of the Orders

60. For the reasons set out above I conclude that the respondent is in breach of the Orders made by the Tribunal at first instance in that

1. it has not prepared a written site agreement in the standard form as set out in Schedule 1 of the RLLC Regulation together with details of site fees payable and the method of increasing those site fees within 7 days of 17 January 2018, or at all

2. it has not entered into a written site agreement in the standard form as set out in Schedule 1 of the RLLC Regulation together with details of site fees payable and the method of increasing those site fees within 7 days of 17 January 2018, or at all

Did the respondent have a reasonable excuse for having failed to provide a site agreement as required by Order 1?

61. Because of the position contended for by the respondent in its letter of 22 November 2019 the respondent has never submitted a form of site agreement as required by the Orders. It persisted in maintaining that position up until and during the course of the hearing before me on 23 December 2020. I have found that there was no justification in law for the respondent to have maintained that position.

62. As I have observed, the respondent refused to provide a site agreement to the applicant until the applicant had satisfied it as to a number of matters, the details of which I have earlier set out. The respondent contended that until this information had been provided it could not provide a site agreement which satisfied the requirements of Order 1, because of statutory obligations imposed on both it and the applicant.

63. I reject this submission. I have summarised the matters outlined in the letter of the respondent dated 22 November 2019 at [32] and [33] above. These are matters which might impact upon the legality or otherwise of the structures which had been placed on the site. They had clearly been there for some considerable time. At no stage did the respondent assert that there was a particular breach of any particular statutory provision. The letter of 27 November 2017 said that “there may be an issue regarding the structures located” on the site but did not specify what it was. The letter of 22 November 2019 noted the necessity to ensure that the structures were compliant, but again did not assert that they were not compliant in any manner.

64. I note that by section 73 (2) of the CAT Act that the respondent bears the onus of establishing that it had a reasonable excuse for having failed to comply with the Orders.

65. Absent any particularity that there were any particular concerns about compliance with any statutory requirement, I do not agree that the respondent had any reasonable excuse for having failed to prepare and enter into a written site agreement as required by the Orders of the Tribunal.

66. I also reject the submission of the respondent that in some way it was entitled to insist on the provision of the additional 38 clauses in the site agreement beyond those provided for in the standard form contained in the Schedule. It will be remembered that the respondent asserted in the letter of 22 November 2019 that if the applicant had refused to agree to the terms of the site agreement proposed by it, then it would not be possible for a site agreement to be concluded. During the course of the hearing Ms Hickling who represented the respondent asserted that the respondent was entitled to insist on the inclusion of these additional clauses, notwithstanding the Orders made by the Tribunal, because the standard form of agreement in the Schedule provided for the negotiation of additional terms. She did not concede that the description of these additional terms as being “negotiable” negated any entitlement by the respondent to unilaterally insist on their inclusion.

67. In submissions, the respondent asserted that each of the additional terms which it sought to have included in the site agreement reflected either statutory obligations or provisions which introduced clarity to the arrangements between the parties, so as to minimise any future disputation. In the absence of any particular submission which would compel or strongly support the inclusion of any particular additional term in the standard site agreement contained in the Schedule, I am unable to conclude that insistence on their inclusion would constitute a reasonable excuse for having failed to comply with the Orders of the Tribunal.

68. In addition, I note that the Orders were designed to resolve a dispute between the parties which has now been continuing for over 10 years and was prima facie within power and jurisdiction. Furthermore, if the respondent had wished to advance any argument beyond the many which it raised during the course of the proceedings, it had an opportunity of doing so in both sets of proceedings in this Tribunal and in the Supreme Court. I have previously noted that the respondent was represented by counsel and solicitors in those proceedings.

69. I conclude that there is, on the evidence, and having regard to the relevant statutory context no impediment to the respondent having complied with the Orders at least by 29 October 2019 being 14 days after the respondent’s appeal to the Supreme Court was dismissed, and no reasonable excuse for it having failed to do so. It follows that the respondent has not established that it has a reasonable excuse under section 73 (2) of the CAT Act for having failed to comply with the Order.

Principles applying to the exercise of discretion under section 73 (5) of the CAT Act

1. I next come to consider the principles which should apply in determining whether or not to refer this matter to the Supreme Court for determination under section 73 (5) of the CAT Act.

2. I considered the circumstances in which the discretion might be exercised in Bott v NSW Land and Housing Corporation [2017] NSWCATCD 88. At [29] and [30] I said

   29   It should first be observed that I am concerned only with the question of whether or not, by reason of the allegations of contempt against the respondent made by the applicant, that matter should be referred to the Supreme Court for determination by that Court…………….

   30 Fortunately, guidance is provided as to the appropriate in principle approach by observations of Basten JA (Sackville AJA agreeing) in the NSW Court of Appeal in Mohareb v Palmer [2017] NSWCA 281. The fundamental question to be determined is whether the conduct which is the subject of the allegations is “capable of amounting to contempt.” The determination of this question involves a consideration of the relevant factual matters coupled with a requirement to afford the respondent an opportunity to address the Tribunal about whether or not the matter should be referred to the Supreme Court……….

   70. After considering the several judgements in the High Court of Australia, in AMIEU v Mudginberri Station Pty Ltd [1986] HCA 46 I observed, in terms which I adopt for the purpose of these proceedings

   34   Accordingly, in considering the conduct of the respondent it is appropriate to determine whether it is a “deliberate commission or omission which is in breach of an ... order (which will thereby)... constitute ... wilful disobedience unless it be casual, accidental or unintentional.” “Deliberate” where used in this context does not reflect conduct where there is a direct intention to disobey an order. It will include conduct where the respondent, being aware of it, had “no direct intention to disobey the order". Significantly for the purpose of these proceedings, the conduct will remain characterised as wilful “even if, in a case where the breach was constituted by an act or failure to act by a servant or agent, the act or omission of the servant or agent was "through carelessness, neglect, or even in dereliction of his duty".

   71. In the circumstances of these proceedings it is clear that at all times the respondent was aware of the terms of the Orders, but nevertheless persistently insisted that it was entitled to decline to obey them because of a belief, which I have found to be mistaken, that its statutory obligations otherwise allowed it to take an alternative course of action. That belief also misunderstands the clear language used in the Orders.

   72. There is in evidence correspondence between the applicant and the respondent about these matters and whether the respondent was entitled to continue to maintain the position that it did. It cannot be said in the circumstances that there was any casual, accidental or unintentional excuse for what must be concluded is the respondent’s wilful and persistent disobedience of the provisions of the Orders.

   73. I find that the respondent has demonstrated a contumacious disregard for the clear terms of the Orders and has consistently declined to comply with them.

Conclusions

74. For the reasons advanced above, I find that the conduct of the respondent in failing to have provided a form of site agreement in compliance with the Orders is capable of amounting to contempt.

75. I note for completeness that both parties accepted that the reference in Order 1 to the Act should be taken to be a reference to the relevant Regulation.

76. In determining to accede to the applicant’s request to refer the matter to the Supreme Court of NSW I take into account two matters. The first is encapsulated in observations that I made in Bott at [35] concerning the public interest in upholding orders made by this Tribunal

35 The High Court of Australia revisited the civil/criminal contempt dichotomy in Witham v Holloway [1995] HCA 3. It is not necessary that I refer to the judgements in those proceedings at this stage, save to note that the joint judgement of Brennan, Deane, Toohey and Gaudron JJ applied Mudginberri and emphasised that “the public interest in the administration of justice requires compliance with all orders and undertakings, whether or not compliance also serves individual or private interests.”

77. The second matter involves the personal circumstances of the applicant. He has had the benefit of Orders made in his favour which relate to property which he acquired in 2010. He has been precluded from enjoying the statutory benefit of a written site agreement despite the passage of over 10 years. Furthermore, he has had the benefit of those Orders despite unsuccessful attempts by the respondent to deprive him of them at least since 15 October 2019, but with no ability to enforce them.

78. Enforcement of orders made by this Tribunal is limited by the provisions of the CAT Act. In the circumstances which have prevailed to date in these proceedings referral of the respondent to the Supreme Court for determination as to whether it should be held guilty of contempt of this Tribunal and if so the fixing of an appropriate penalty appears to be the only course of action now available to the applicant to seek to enforce rights which have been afforded to him by Orders of this Tribunal, upheld on appeal by an Appeal Panel and the Supreme Court of NSW.

79. I propose to make an order for referral accordingly.

Costs

80. The question of costs has not been argued. I shall reserve costs and grant liberty to apply.

Orders

81. I make the following orders

1. I refer to the Supreme Court of New South Wales for its consideration the matter of whether the respondent Hacienda Caravan Park Pty Limited trading as Tweed River Hacienda Holiday Park has committed contempt of the NSW Civil and Administrative Tribunal by reason of its failure to comply with Orders made on 17 January 2018 in matter RC 17/33896 being in the following terms

   1. The respondent is to prepare and enter into with the applicant a written site agreement in the standard form as set out in Schedule 1 of the Residential (Land Lease) Communities Act 2013 within 7 days of the date of this order

   2. Site fees payable under the agreement are to be in the same amount as are currently paid to the operator

   3. The method of increasing site fees to be the same as that used most recently to increase the site fees

   4. The commencement date of the agreement is specified to be the date of these orders.

   1. I note that the reference in Order 1 above should be a reference to the Residential (Land Lease) Communities Regulation 2015.

   2. Costs are reserved with liberty to apply which must be exercised within 42 days of this date.

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

Amendments

19 January 2021 - Corrected Applicant representation details

19 January 2021 - Corrected Respondent representation details

24 May 2022 - Coversheet Applicant details amended from 'Tenant's Union of NSW (Applicant)' to 'Tenants Union of NSW Co-op (Applicant)'.

Decision last updated: 24 May 2022