Dubow v Ingenia Communities Re Limited
[2015] NSWCATCD 11
•16 January 2015
|
New South Wales |
Case Name: | Dubow v Ingenia Communities Re Limited |
Medium Neutral Citation: | [2015] NSWCATCD 11 |
Hearing Date(s): | 28 November 2014 |
Decision Date: | 16 January 2015 |
Jurisdiction: | Consumer and Commercial Division |
Before: | K Ross, General Member |
Decision: | The application is dismissed. |
Catchwords: | Permanent resident, casual resident |
Legislation Cited: | Residential Parks Act 1998 |
Cases Cited: | Hacienda Caravan Park Pty Ltd v Raethke (General) [2012] NSWCTTT 154; Haywood v Hastings Riverside Co Pty Ltd (General) [2008] NSWCTTT 1002, Morgan v Wyong Shire Council (Residential Parks) [2007] NSWCTTT 151 |
Category: | Principal judgment |
Parties: | Yolande Victoria Frances Dubow (applicant) |
Representation: | The applicant appeared in person |
File Number(s): | RP 14/37040 |
Publication Restriction: | Unrestricted |
REASONS FOR DECISION
Application
In her application filed on 22 July 2014 the applicant seeks the following orders:
(1)An order pursuant to the Contracts Review Act 1980. This was not pressed at the hearing,
(2)An order pursuant to sec 26 of the Holiday Parks (Long Term Casual Occupation) Act 2002 that the applicant holds a permanent lease of site 70, and is entitled to a termination notice as provided under the Residential Parks Act 2010,
(3)An extension of time for bringing the application, if required,
(4)A declaration pursuant to s 29 of the Civil and Administrative Act 2013 that the respondent is bound by the allegedly false and misleading information provided by the previous owner regarding consent to the extension and renovation of the caravan at the site,
(5)Setting aside of the termination notice,
(6)An order pursuant to the Residential Parks Act 2010 (sic) s 114. This was not pressed at the hearing,
(7)Pursuant to s 128 of the Residential Parks Act1998 compensation be paid to the applicant prior to the respondent being entitled to possession of the site.
The respondent opposed the orders sought. The respondent says that the applicant is a resident pursuant to the Holiday Parks (Long Term Casual Occupation) Act 2002. The respondent denies giving consent to the applicant for permanent residence and denies that the applicant is entitled to the benefit of the Residential Parks Act 1998.
Applicant’s evidence
The applicant filed with the Tribunal a bundle of documents, including an affidavit. The Tribunal has taken account of all documents filed but will not list them in these reasons. The applicant acknowledges that she entered into a Casual Occupancy agreement in respect of site 70 Macquarie Lakeside Village, after the purchase of a van on that site in mid 2013. She commenced payment of site fees from 27 July 2013. She says that she understood the terms of the casual occupancy agreement “but also that the Park was approved for 43 permanent sites”. She alleges that she understood that she could apply at a later date if any became available. She does not give any evidence about how she came to that understanding.
The applicant provides copies of email correspondence between herself and the Park owners between August 2013 and October 2013. In these emails, she makes a number of references to her home in Bundaberg.
The applicant says that on 17 October 2013 she had a discussion with “Brad, the owner” and discussed renovations to the van. She was not told of any impending sale, or of the possibility of termination of her site agreement.
Early in October, 2013 she says that she had two of her cars parked on the site, and was asked to move one. She says that “as both cars were parked on site it was evident I had nowhere else to store them”.
The applicant stayed away from the park for 6 weeks over Christmas 2013/2014, in accordance with the terms of the casual occupancy agreement. Upon her return she found a letter advising that ownership of the Park had changed hands from December 2013.
The applicant says that at the expiry of the term of the casual occupancy agreement, she sent a text message to the respondent’s representative Hamish Bastian regarding paying fortnightly through Centrepay “so that I could become a permanent”. A copy of the text message included in the documents is illegible. However the phone itself was available at the hearing. The message requested consent to pay fortnightly, but made no mention of permanent residency. The applicant was told to see the office.
The applicant alleges that she attended the office and spoke to “Di and Joe”, the managers at that time. They told her the site was permanent but they could find no copy of her site agreement. When the next Centrelink form arrived, she presented it to Di, who signed it.
In February and March 2014 the applicant was away for another fortnight or so. Upon her return in April she was approached by residents seeking advice.
The applicant says that all of her electricity bills since February 2014 have indicated that she is a permanent resident.
On about 23 June 2014 the then manager of the Park, Damien, approached her and said that Hamish wanted to speak with her. She wrote a letter to the respondent. She does not provide a copy of that letter. In it she advised that the approach by Hamish was unacceptable and proposed the formation of a liaison committee. Subsequently she called a meeting of residents for 31 July 2014 at midday.
The applicant says that she was again absent from the Park “at the beginning of July and possibly the rest of it”. She says she returned to the Park on 14 July 2014. She was again asked by Damien if Hamish could speak to her. She said “it has to be in writing”.
On 16 July 2014 she received a call from Hamish who said that she would be receiving a 90 day termination notice.
On 29 July 2014 she was served with 2 termination notices.
The applicant provides a copy of a Notification of Bankruptcy. The applicant provides copies of correspondence in relation to the sale of a property in Lidcombe, and another in Bundaberg. She gives evidence that her Bundaberg address ceased to be her principal place of residence when the Bank exercised its power of sale over it. She provides a number of documents indicating that her principal place of residence is now Site 70 at the caravan park.
Applicant’s submissions
The applicant makes a number of submissions:
(1)The applicant submits that the respondent is estopped from relying upon the termination notice by the doctrine of acquiescence, or estoppel by delay, by reason that the respondent sought and obtained an adjournment of the hearing on the basis that its preferred representative was overseas.
(2)The applicant submits that the Holiday Parks (Long Term Casual Occupation) Act 2002 can only apply to an occupant having an alternative principal place of residence, and must be for a term of at least 12 months. As she has no other principal place of residence, the Holiday Parks (Long Term Casual Occupation) Act 2002 does not apply to her occupancy.
(3)The applicant submits that the agreement under the Holiday Parks (Long Term Casual Occupation) Act 2002 had expired or was defunct or invalid when the termination notice was served. She submits that by its actions, specifically in signing the Centrelink form, and in providing receipts which indicated that the site was a permanent site, actions upon which she relied, the respondent is estopped from denying that it has given consent for her to occupy the site pursuant to the Residential Parks Act 1998.
(4)Neither of the owners of the Park has complied with their obligations of disclosure, or relevant protocols.
Respondent’s evidence and submissions
The respondent provides a bundle of documents including a copy of the agreement between the parties, a statutory declaration of Bradley William Sewell dated 28 August 2014, and a statutory declaration of Dianne Lavery dated 31 August 2014. The Tribunal has had reference to all documents filed but will not list them in these reasons. The respondent denies that the applicant’s tenure at the Park is governed by the Residential Parks Act 1998. The respondent relies upon the casual occupancy agreement signed and acknowledged by the applicant as being the only written agreement entered into by the parties. The respondent notes that the applicant did not advise them of the sale of the Bundaberg property, and made no formal application for approval as a permanent resident. The respondent alleges that it has never given the applicant approval to occupy the site as her principal place of residence.
The respondent denies that in asking the applicant to move one of the vehicles parked on site it was evident that she had nowhere else to store them. It also denies that the signing of the Centrelink form amounted to approval of permanent residence, particularly as the form had a NSW address on it for the applicant. The respondent denies that in advising the applicant to speak to the office, in reply to her request to pay fortnightly, it was approving a change in the applicant’s status in the Park.
The respondent disputes the evidence of the applicant that Di, the onsite manager, advised the applicant that the site was a permanent site. The respondent relies upon a statutory declaration by the park manager, but did not make her available to give evidence as requested by the applicant.
The respondent says that it has no knowledge of the applicant’s absences from the Park but points out an inconsistency in the applicant’s evidence on this issue.
The respondent concedes that the electricity receipts issued to the applicant refer to the site as a permanent site, but claims that this was an error in setting up the computer. The respondent provides a number of receipts in support of its claim.
The respondent submits that the applicant’s evidence that she was applying for jobs, including one in Melbourne, shows that she did not regard the Park as her permanent home.
Findings
The Tribunal makes the following findings:
Is the agreement governed by the Holiday Parks (Long Term Casual Occupation) Act 2002
(1)There is no dispute that the applicant entered into an occupation agreement with the Respondent, said to be an agreement under the Holiday Parks (Long Term Casual Occupation) Act 2002. The applicant says that when she entered into the agreement, she understood it. She is a qualified lawyer, who holds a current practicing certificate. The Tribunal finds that she understood the terms of the agreement, including the clauses dealing with termination of the agreement.
(2)The written agreement is dated 17 October 2013. However the Tribunal is satisfied that the applicant’s tenure commenced from when she commenced to pay the occupation fees, on her evidence, 27 July 2013.
(3)The agreement was for a term of 6 months, with a holding over clause. The term of the agreement commenced on “August 2013” and ended on “February 2014”. Section 5 of the Holiday Parks (Long Term Casual Occupation) Act 2002 provides as follows
5 Act applies to long-term casual occupants
(1) This Act applies to any occupation agreement in relation to a site:
(a) entered into by an occupant who has a principal place of residence somewhere other than the site, and
(b) under which the occupant installs the occupant’s own moveable dwelling on the site and leaves it there all of the time that the occupation agreement continues in force, and
(c) under which the occupant can occupy the site for no more than 180 days in any 12-month period (in a continuous or broken period), and
(d) under which:
(i) the occupant agrees, with the consent of the park owner, to be an occupant on a casual basis for at least 12 months, or
(ii) the occupant has, with the consent of the park owner, been an occupant on a casual basis for at least 12 months.
(2) This Act applies whether the relevant occupation agreement was entered into before or after the commencement of this section, unless a particular provision provides otherwise.
(3) Subject to sections 14 and 16, if this Act applies to an occupation agreement, it so applies despite the terms of any such occupation agreement or any other contract, agreement or arrangement, whether made before or after the commencement of this section.
(4)Accordingly, the Holiday Parks (Long Term Casual Occupation) Act 2002 does not apply to the agreement, unless (i) the occupant agrees, with the consent of the park owner, to be an occupant on a casual basis for at least 12 months, or (ii) the occupant has, with the consent of the park owner, been an occupant on a casual basis for at least 12 months. Neither of these circumstances apply to the agreement in this case, whether the agreement is taken to have commenced when the applicant took over payment of the site fees, or whether it commenced on the date it was executed (17 October 2013). The agreement itself was for a term of 6 months. Furthermore, there is no evidence that either party intended the occupant (despite the written agreement) to be an occupant for at least 12 months, and that proposition is entirely at odds with the applicant’s assertions in this matter..
(5)The Tribunal is satisfied that the Holiday Parks (Long Term Casual Occupation) Act 2002 does not apply to the agreement between the parties. The relationship between the parties is governed by the terms of the written agreement itself.
Is the agreement governed by the Residential Parks Act 1998
(1)The Residential Parks Act 1998 provides as follows:
5 Application of Act
(1) This Act applies to residential tenancy agreements under which:
(a) the residential premises consist of a residential site, or a moveable dwelling on a residential site, and
(b) the resident occupies the residential premises as the resident’s principal place of residence, and
(c) in the case of an agreement entered into after the commencement of this section, the resident has the approval of the park owner or park manager to occupy the premises as the resident’s principal place of residence.
(1A) A person does not cease to occupy residential premises as the person’s principal place of residence by reason only that the person is absent from the premises for the purpose of receiving medical, nursing or domestic care.
(2) This Act applies whether the relevant residential tenancy agreement was entered into before or after the commencement of this section, unless a particular provision provides otherwise.
(3) Where this Act applies to a residential tenancy agreement, it so applies despite the terms of any such residential tenancy agreement or any other contract, agreement or arrangement, whether made before or after the commencement of this section.
(2)At the date the original agreement was entered into, the applicant had a principal place of residence in Bundaberg. In the email correspondence between the parties between July and October 2013, the applicant made reference to that fact. For example, in the email dated 28 August 2013 “I live in Queensland”, in the email dated 9 September 2013 “…send the village rules … to me at my residential address… Bundaberg”, in the email dated 20 September 2013 “I have not received the village rules at my Bundaberg address”. The applicant, having advised the original owner of the Park of her principal place of residence, did not at any time advise the respondent that the address in Bundaberg was no longer her principal place of residence. The applicant acknowledged during the hearing that she had not made any such disclosure to the respondent.
(3)The Tribunal accepts that the applicant herself determined, at some time after the agreement was entered into, (and she says after the initial term of the casual agreement had expired) that she would live permanently at the Park. She registered her pets there, and has used the Park address for various organisations. However the Tribunal is not satisfied that the respondent gave her consent to do so. The Residential Parks Act 1998 requires that the respondent consent to the applicant occupying the premises as her principal place of residence.
(4)The Tribunal is not satisfied that the applicant’s status as a resident changed. The applicant is not entitled unilaterally to determine that her casual occupation of the site has become permanent. The Tribunal is not satisfied that the respondent was put on notice of the applicant’s change in residential circumstances, and the respondent cannot be expected to have deduced that the applicant no longer had a principal place of residence outside the Park, from the fact that the applicant had 2 cars at the Park, or that she wished to pay her rent fortnightly.
(5)Neither is the Tribunal satisfied that the respondent is estopped from denying that consent was given because its casual employee may have indicated that the site was a permanent site. In this regard the Tribunal notes that, whilst the Park’s employee denies making such a statement, she was not available for cross examination as requested by the applicant. The Tribunal accepts the applicant’s evidence that she was told by Di that the site was a permanent site. However, at that time, the applicant knew that the agreement she had signed was for a casual occupation of the site. She knew that she had not made any formal request for her status to change. She knew that she was paying site fees for a casual occupation of the site, and there had been no variation of that agreement. The Tribunal is not satisfied that the applicant was misled by the information provided. Rather she has sought to take advantage of the Park’s mistake to elevate her occupation within the Park.
(6)The applicant also points to the receipts which she was given for electricity, and notes that they referred to the site as a permanent site. The Tribunal accepts the Park’s evidence that this was a computer set up error. It is noted that the applicant does not provide any receipts for the period when she acknowledges that she was a casual occupant in the Park. Nor does she provide any receipts for site fees. The Tribunal is not satisfied that the words on the receipts amount to consent by the respondent to a change in the applicant’s status.
(7)The Tribunal is not satisfied either that the respondent’s execution of the Centrelink authority amounts to a consent by the respondent to the applicant’s change in status, particularly in circumstances where the form showed an address for the applicant which was not the Park address. It was not for the respondent to make any assumption about why or whether the applicant was entitled to use the Centrepay deduction scheme.
(8)Accordingly the Tribunal is not satisfied that a fresh agreement under the Residential Parks Act 1998 was entered into between the parties. The applicant is holding over under the original agreement, and it governs the applicant’s occupation of the site. Accordingly the respondent was entitled to serve a notice of termination pursuant to clause 40 of that agreement.
(9)The Tribunal makes no determination as to whether the notice of termination was properly served in circumstances where, as a result of the findings made, the Tribunal has no jurisdiction to determine the termination application.
(10)The applicant relies upon three cases in support of her claim. The Tribunal is satisfied that all of these cases can be distinguished on their facts In Hacienda Caravan Park Pty Ltd v Raethke (General) [2012] NSWCTTT 154, the primary issue was whether an existing agreement had been assigned. No such issue arises in the current case. In Morgan v Wyong Shire Council (Residential Parks) [2007] NSWCTTT 151, the resident had been in occupation for upwards of 10 years. In those circumstances the Tribunal found that the respondent had acquiesced in the resident’s use of the premises as his principal place of residence. That is not the case in this matter, where the respondent seeks to assert its rights under the casual agreement within a few months of when the resident alleges that the arrangement had become permanent. In Haywood v Hastings Riverside Co Pty Ltd (General) [2008] NSWCTTT 1002, the issue was whether the Residential Parks Act 1998 applied, or whether the Residentail Tenancies Act 1987 applied. The facts in that case are different from those in the current case.
Acquiescence or estoppel by delay
(1)The applicant submits that the respondent is estopped from relying upon the termination notice because it sought and obtained an adjournment of these proceedings. The Tribunal rejects that submission. There has been no unnecessary delay by the respondent. It has defended these proceedings, and during that period has taken no action to enforce the termination notice. That course of action is not unreasonable and does not amount to laches, or acquiescence.
Neither of the owners of the Park has complied with their obligations of disclosure, or relevant protocols.
(1)The applicant says that, on 17 October 2013, she had a discussion with an employee of the Park in which her intention to renovate the premises was discussed. No disclosure of a pending sale was made to her at that time. The Tribunal is not satisfied that there was any obligation on the Park to make such a disclosure, but even if there was, by the time these discussions took place the applicant had owned the relocatable home for some months.
(2)The applicant also complains that the Park has not complied with relevant protocols. The Tribunal is not satisfied that the applicant’s occupation of the site is governed by the Protocol provided by her in her documents, bearing in mind that the Tribunal is not satisfied that the respondent had consented to the applicant occupying the site as her principal place of residence.
Decision
It follows from the reasons set out above that the application must be dismissed. It is noted that, as the Tribunal has determined that neither the Holiday Parks (Long Term Casual Occupation) Act 2002 nor the Residential Parks Act 1998 applies to the applicant’s occupation, the Tribunal has no jurisdiction in this matter.
K Ross
General Member
Civil and Administrative Tribunal of New South Wales
16 January 2015
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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
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