Fontainas v Gennacker Pty Ltd t/as Homestead Holiday Flats

[2021] NSWCATEN 1

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Fontainas v Gennacker Pty Ltd t/as Homestead Holiday Flats [2021] NSWCATEN 1

Hearing dates:

4 December 2020

Decision date:

08 January 2021

Jurisdiction:

Enforcement

Before:

The Hon F Marks Principal Member

Decision:

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 Gennacker Pty Limited trading as Homestead Holiday Parks has committed contempt of the NSW Civil and Administrative Tribunal by reason of its failure to comply with Order (1) made on 28 June, 2019 in matter RC 18/31014 being in the following terms:

By 14 days from the date of this decision, Gennacker Pty Limited trading as Homestead Holiday Parks is to provide to Jacques Fontainas a signed standard form site agreement in respect of site 33 at 200/25 Chinderah Bay Drive, Chinderah NSW 2487 (“the park”). The site agreement is to comply with Schedule 1 of the Residential (Land Lease) Communities Regulation 2015 (NSW). The fees, charges, and site fee increases stipulated in the site agreement are to be consistent with equivalent sites at the park which are the subject of current site agreements.

(2)   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 s73

Residential (Land Lease) Communities Act 2013 (NSW) s 12,109

Residential (Land Lease) Communities Regulation 2015

Cases Cited:

Fontainas v Gennacker Pty Ltd trading as Homestead Holiday Park (unreported Civil and Administrative Tribunal NSW Consumer and Commercial Division 28 June 2019 RC 18/31014)

Gennacker Pty Ltd trading as Homestead Holiday Park v Fontainas [2019] NSWSC 1376.

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:

Jacques Fontainas (Applicant)
Gennacker Pty Ltd trading as Homestead Holiday Parks (Respondent)

Representation:

Counsel:
P Batley (Applicant)

Solicitors:
Legal Aid NSW (Applicant)
Worcester & Co Solicitors (Respondent)

File Number(s):

PC 20/30452

Publication restriction:

Nil

reasons for decision

Background

1. These proceedings concern an Application brought by the applicant Jacques Fontainas seeking an order that the respondent Gennacker Pty Ltd trading as Homestead Holiday Parks be referred by this Tribunal to the Supreme Court of NSW for determination whether the respondent is guilty of contempt of this Tribunal.

2. The application is brought under section 73 of the Civil and Administrative Tribunal Act 2013, (“the CAT Act”) which is in the following terms

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 Order 1 of this Tribunal made on 28 June 2019 in Fontainas v Gennacker Pty Ltd trading as Homestead Holiday Park (unreported Civil and Administrative Tribunal NSW Consumer and Commercial Division RC 18/31014). In those proceedings the applicant in these proceedings was the applicant and the respondent in these proceedings was the respondent. Order 1 provided that

1. By 14 days from the date of this decision, (the respondent) is to provide to (the applicant) a signed standard form site agreement in respect of site 33 at 200/25 Chinderah Bay Drive, Chinderah NSW 2487 (“the park”). The site agreement is to comply with Schedule 1 of the Residential (Land Lease) Communities Regulation 2015 (NSW). The fees, charges, and site fee increases stipulated in the site agreement are to be consistent with equivalent sites at the park which are the subject of current site agreements.

4. For completeness I set out Order 2

2.   By 14 days after order 1 above, (the applicant) is to return to (the respondent) a signed copy of the site agreement.

5. In these proceedings the applicant asserts that the respondent has never provided a signed 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. I shall refer to the Residential (Land Lease) Communities Regulation 2015 as “the Regulation.”

6. I add for completeness 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 the respondent brought proceedings in the Supreme Court of NSW seeking a judicial review of the Decision by which the Tribunal orders were made. Those proceedings were dismissed on 11 October 2019 by Lonergan J in Gennacker Pty Ltd trading as Homestead Holiday Park v Fontainas [2019] NSWSC 1376 on the basis that it was inappropriate for the Court to engage in a judicial review in circumstances where the respondent had not instituted an appeal to an Appeal Panel of this Tribunal under the provisions of the CAT Act. Furthermore, the operation of the Orders was subsequently stayed until 3 February 2020 by order of an Appeal Panel as referred to later at [22].

7. As will be seen the respondent has refused to provide a site agreement to the applicant until the applicant has satisfied it as to a number of matters, the details of which I shall shortly refer to. The respondent contends that until this information has been made available it cannot provide a site agreement which satisfies the requirements of Order 1, the applicant contending to the contrary. In essence, there are two fundamental issues to be determined in deciding whether a referral should be made to the Supreme Court namely

1. does the provision of a written form of site agreement subject to compliance with certain preconditions and containing terms additional to those set out in the Schedule 1 standard form site agreement amended by the inclusion of fees, charges and site fee increases as contemplated by the terms of the order comply with the terms of Order 1?

2. if not, has the respondent established that there is a “reasonable excuse” for not complying with the order as contemplated by section 73 (2) of the CAT Act?

The factual matrix leading up to the making of the Order

8. The narration of the factual circumstances which apply to these proceedings which follows is taken from the reasons for decision of the Tribunal leading up to the making of Order 1, and from evidentiary material tendered by consent by both parties in these proceedings.

9. The respondent is the owner of a residential holiday park at Chinderah, New South Wales which is governed by the Residential (Land Lease) Communities Act 2013 (NSW) (“RLLC Act”).

10. On 27 August 2015 the applicant entered into a contract to purchase a fixed caravan with an annexe which included a deck and a carport in the holiday park for the sum of $155000. The purchase was subject to the applicant negotiating a long-term lease on the land on which these items were situated. The vendor warranted that she had “a long-term lease on the land, for a long-term occupancy.” The applicant sought a long-term site agreement from the respondent pursuant to the RLLC Act. His plan was to live in the property as his principal place of residence.

11. Pursuant to s 109 of the RLLC Act the respondent was required to enter into a new agreement with the applicant unless certain matters, specified in subsection (2), apply:

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).

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

13. Initially, the respondent offered the applicant a short term agreement but this required him under the legislation to have a principal place of residence elsewhere and restricted his occupation of the site to no more than 180 days in any 12-month period. He declined this offer, stating that he required a permanent site agreement. The respondent sent a letter to the applicant dated 24 September 2015 offering to further consider the request if he attended to certain matters. These were the provision of a survey drawing and a report from a licensed and qualified building certifier stating that all of the structures on the site complied with the Local Government Act 1993 and the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Movable Dwellings) Regulation 2005 including matters relating to separation distances, setbacks, site coverage, running gear, structural soundness, design gust wind speed, floor area and compliance plates. The applicant appears to have taken the view that he was not required to provide this information.

14. The applicant then commenced proceedings in this Tribunal in relation to the dispute over the site agreement.

15. The Tribunal made consent orders on 11 December 2015 that provided inter-alia that the applicant give certain information to the respondent within a particular time, after which the respondent was to provide to the applicant a residential site agreement under the RLLC Act within a further time period. The applicant contended that he provided all the documents in line with the timetable, but the respondent failed to provide the site agreement. The applicant sought to enforce the consent orders by commencing other proceedings in this Tribunal. He was initially unsuccessful but was successful on appeal. The matter was remitted to the Tribunal differently constituted to decide a number of specific questions.

16. Consent order (4) made on 11 December 2015 provided that

(4)    The parties have leave to re-list the matter before the Tribunal at short notice, to determine any disputes that may arise in carrying out these orders.

17. When referring the specific questions to the Tribunal by way of remittal the Appeal Panel said that the rehearing was to be “treated as an application under order (4) made 15 December 2016.” This is clearly a typographical error and should have referred to 15 December 2015.

18. The issues which the Appeal Panel ordered to be resolved were

(a)   Whether order 2 made 15 December 2015

1. Reflected the agreement of the parties to settle the dispute

2. Is ambiguous

3. Required the carrying out of work to bring the structures on site into compliance with the Local Government Act 1993 and the Local Government (Manufactured Home Estates, Caravan parks, Camping Grounds and Movable Dwellings) Regulation 2005 in respect of setbacks and site coverage as applied to structures built after the date the Regulation came into effect

4. All, in the alternative to 4 (a) (iii), whether the savings and transitional provisions of the Regulation meant that the structures on site comply with the Regulation

b If order 2 did not require the appellant to carry out work to bring the structures into conformance with the Regulation, did the parties agree:

(i)   That it was a condition precedent to the entry of a new site agreement for such work in 4 (a) (iii) above to be carried out; and/or

(ii) That the respondent could otherwise refuse to enter a site agreement on reasonable grounds (as may be permitted pursuant to s 109 (2) of the Residential (Land Lease) Communities Act 2013), or did the agreement and the orders made on 15 December, 2015 limit the matters to which the appellant was required to comply before order 3 made 15 December, 2015 took effect

19. It was these remitted questions that were dealt with in the decision and orders made by Senior Member Sarginson on 28 June 2019. After a hearing, he made Order 1 set out in [3] above. There has been no appeal instituted from that decision, and, as I have previously stated, an application brought by the respondent for judicial review was dismissed.

20. Of significance for the purpose of these proceedings Senior Member Sarginson made the following findings

1. in early February 2016 the applicant provided documents to the respondent in response to the request made in its letter of 24 September 2015, the details of which are summarised in [12] above

2. included within those documents was a letter from Tweed Shire Council dated 15 January 2016 which stated that the structure on the relevant site had been inspected and was found to be “satisfactorily completed.”

3. included within those documents was a letter from an engineer Mr Lucena dated 5 February 16 stating that the structures on the site had been inspected on 3 February 2015 and were certified to be structurally adequate in compliance with designated Australian Standards. The letter enclosed compliance plates for the annex and carport. In addition, the letter referred to survey drawings by a registered surveyor “showing areas, separation distances and setbacks. These items are all compliant and have been previously approved by Council and have not changed.” That letter noted that previous certificates to the same effect had been issued in 2013 and 2015

4. on 11 February 2016 the respondent wrote to the applicant refusing to issue a long-term site agreement on the basis, inter alia, that the structures on the site substantially exceeded the site coverage allowed under the Local Government Act and Regulations, the structures exceeded the rear boundary of the site, and the compliance plate was inadequate. In addition, it was said that a letter from an engineer related to the wrong site. Finally, the letter said that if the structures on the site had not been “substantially modified” to enable compliance with the Local Government Act and Regulations by 18 March 2016 the applicant was required to remove the structures from the site immediately.

5. The documentation provided by the applicant to the respondent in early February 2016 “in respect of the survey; the letters of Mr Lucena and attached documents; and the correspondence from Tweed Shire Council satisfies the relevant statutory requirements and the local Council takes no issue with the structures.”

6. The structures on the site were compliant with all relevant statutory requirements

7. apart from the allegations made by the respondent that the structures were non-compliant with statutory requirements, which were rejected by the Senior Member, the respondent had not raised any other grounds upon which to refuse to issue a site agreement and “the Tribunal is satisfied that the (respondent) does not have reasonable grounds for refusing to issue a site agreement.”

21. In addition to making the findings referred to above the Senior Member made additional findings relating to compliance with the consent orders of 11 December 2015 the existence of which had formed the basis of the eventual referral of the proceedings to him. The Senior Member said that even if the information provided by the applicant to the respondent did not “strictly comply with the information sought in the letter of the (respondent) dated 24 September 2015, the Tribunal is satisfied the applicant has established that the operator does not have reasonable grounds to refuse to enter into a site agreement because

The applicant has provided evidence from an engineer that the structures on site are sound; comply with relevant Australian Standards; and comply with local Council requirements

The structures have been in place since late 2004 or early 2005, and the local Council is aware of the structures, and has been aware for a considerable period of time

The local Council has not taken action previously regarding the structures and has stated that it does not intend to take any action in the future to require the structures be removed or modified

The operator did not take any action to request the previous site owner remove or modify the structures, and has first raised the issue of whether or not the structures comply with the Local Government Act 1993 and 2005 Regulations after sale of the home to the applicant

No evidence has been provided by the operator to support any other grounds for refusal, such as the structures are unsafe, or deleteriously affect the use and enjoyment of the park by other occupants

Events subsequent to the making of the Order

22. On 16 October 2019 the applicant wrote to the respondent stating that it was now in breach of Order 1. The respondent replied on 23 October 2019 stating it would be making an application to appeal from the decision of Senior Member Sarginson, which appeal was eventually filed on 19 November 2019. The orders made were stayed by the Appeal Panel pending the outcome of the appeal. On 3 February 2020 the appeal was withdrawn and dismissed, and the stay was lifted.

22. On 9 January 2020 the respondent forwarded a lengthy letter to the applicant attaching a disclosure statement, site condition report, NSW Fair Trading Moving into a land lease community brochure, sample site agreement and community rules. The “sample agreement” enclosed with that letter was said to be the respondent’s “current standard form site agreement which contains additional terms permissible in accordance with the statutory legislation and complies with the Residential (Land Lease) Communities Act 2013 and Residential (Land Lease) Communities Regulation 2015… We are of the opinion that the additional terms are not inconsistent, nor contrary to the legislation and they are also not unlawful.”

23. The letter went on to refer to the requirement imposed on the applicant as owner to ensure that the structures were in compliance with the “statutory legislation” and to ensure that 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.”

24. The letter in summary

1. said that a survey plan showed that the carport did not comply with Clause 141 of the Regulations, by reference to detailed measurements of the external dimensions of the carport, the total external perimeter of the carport, the length of the perimeter not enclosed from the front of the structure going around anticlockwise, the total length of the perimeter not enclosed, the fact that 2 sides of the carport are not open and that one third of the perimeter was not open. However, I note that the letter did not specify in what way there was non-compliance.

2. said that the applicant should provide an updated survey plan identifying any discrepancies in the numerous calculations set out and certifying compliance with Clause 141

3. said that a letter from Tweed Shire Council dated 15 January 2016 which had been issued by the Council was in error

4. said the applicant must make the carport compliant

5. said a survey plan showed that the structures erected on the sites exceeded the rear site boundary and asked that an updated survey plan be provided with certification of compliance with Clause 161

6. said a survey plan, referred to in some considerable detail demonstrated that the percentage of site coverage of the floor area of certain structures was 85% of the site whereas Clause 162 provided that it must not be more than two thirds of the area of the site

7. said a survey plan did not address the provisions of Clause 162 dealing with site coverage

8. made references to a number of other Clauses being 163 (maintenance), 165 (running gear), 166 (structural soundness), 167 (design gust wind speed), 168 (glazing), 169 (floor area), 170 (installation of rigid annexe) and 171 (wind resistance). There appears to be an assertion that Clause 170 has not been complied with, but it is unclear whether there are any complaints with respect to the other matters

9. said the compliance plate required to be attached under Clause 172 was deficient in that it did not contain the name of the manufacturer of the rigid annexe, the month and year during which it was constructed or the fact that it complied with the requirements of Division 5 of the Regulations. The applicant was asked to arrange for a new compliance plate to be issued with all of the required information and to provide 2 dated and colour photographs of the new compliance plate

10. said it appeared to the respondent that a rear deck had been installed by the previous owner without permission, based on information contained in a survey report

11. said the applicant must provide to it copies of a gas inspection certificate, copies of dated colour photographs of the compliance plates, copies of certification from a licensed electrician that the electrical cord connecting the caravan or other associated structures to the power supply has been tested and tagged, copies of each of the letters from the local Council authority showing approval of the rear roof deck and the conditions of that approval, copies of dated colour photographs showing the north, south, east and west external elevations of all the structures located on the site owned by the applicant, copies of dated colour photographs of the caravan wall that abuts the Annex that clearly identifies of the wall between the caravan and annexe has not been removed or modified, copies of dated colour photographs showing each of the plants and shrubs located on the site as well as a diagram which includes their location, horticultural species name, current size and projected maximum height and size, and copies of a declaration that a working smoke alarm was fitted in the dwelling. Furthermore, none of this documentation could be more than 30 days old.

12. Asserted that the site agreement could not be entered into unless all of the information required was provided to the satisfaction of the respondent, and if there was no agreement on the terms of the site agreement, no site agreement would be entered into.

The jurisdiction and powers of the Tribunal in making the Orders

26. The reasons for decision and findings of Senior Member Sarginson are important in determining whether and to what extent the respondent has any reasonable excuse for not complying with Order 1, assuming that that Order is not ambiguous in its terms. Before revisiting those reasons and findings it is necessary to set out the provisions of the RLLC Act which bestow jurisdiction and power on this Tribunal. They are found in sections 156 and 157

156   Applications to Tribunal relating to disputes

(1)   A home owner, former home owner or operator of a community may apply to the Tribunal for determination of any of the following—

(a)   a dispute relating to a right or obligation under this Act,

(b)   a dispute arising from, or relating to, a site agreement or collateral agreement,

(c)   any other matter that may be determined by the Tribunal under this Act.

(2)   An application to the Tribunal must be made within the period (if any) specified in this Act or prescribed by the regulations.

157   Orders that may be made by Tribunal

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

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

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

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

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

(e)   an order for the payment of compensation,

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

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

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

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

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

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

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

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

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

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

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

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

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

Note—

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

The decision of the Tribunal

27. The reasons for decision of the Senior Member make reference to a number of matters of controversy, including whether the applicant had fully complied with the agreed conditions set out in the consent orders of 11 December, 2015, and whether any issues of estoppel or Anshun estoppel arose. I take the view that it is not necessary, nor indeed would it be appropriate if I were to go behind the reasoning of the Senior Member. This is because the Orders made by him have not been challenged on appeal and must stand.

28. The matters traversed in the reasons for decision of Senior Member Sarginson deal with many of the matters raised by the respondent in its letter of 9 January 2020, which the respondent asserted must be complied with before it would issue a site agreement.

29. I have summarised the findings of the Senior Member in [20] and [21] above.

30. In all the circumstances, the Tribunal found that the applicant had provided sufficient and adequate information as contemplated within the Consent Orders reflected in the previous Tribunal decision dated 11 December 2015.

31. On this basis the Senior Member concluded that the respondent did not have reasonable grounds for refusing to issue a site agreement because of the matters which I have extracted in [20] above.

Did Order (1) permit the respondent to refuse to issue a site agreement because of requirements as set out in its letter of 9 January 2020?

32. Before considering this matter, it is necessary first to have regard to what was contemplated in Order (1) by reference to “a signed standard form site agreement…….to comply with Schedule 1 of the Regulation. Clause 6 of the Residential (Land Lease) Communities Regulation 2015 refers to Schedule 1 which provides a standard form of site agreement which is in the following terms

Standard form residential site agreement

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—

33. The Order requires the respondent to provide to the applicant a signed standard form site agreement with respect to the particular property “to comply with” Schedule 1 of the Regulation, and to provide fees, charges and site fee increases consistent with “equivalent sites of the park which are the subject of current site agreements.” The 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.

34. 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.

35. 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 precluded from providing a signed site agreement unless it contained all material terms, including additional terms which were its “standard terms”.

36. Whilst there is reference to the inclusion of additional terms in the standard form, it is clearly provided that those terms are “negotiable”. This must mean that they are subject to negotiation and must therefore be the subject of agreement. I note that there is no agreement between the parties about any additional terms.

37. Each page of the proposed form of residential site agreement submitted with the letter of 9 January 2020 was engrossed with the words “sample document only.” The proposed agreement itself 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

38. 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 above.

39. In essence, the controversy between the parties revolves around the manner in which Order 1 may be complied with. The applicant asserts that compliance is restricted to the presentation of a signed form of site agreement for a long-term lease, strictly in the form contained in the Schedule to the Regulation, with necessary items 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 that Order. 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 in circumstances where 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.

Conclusions that the respondent is in breach of the Order

40. I note that prima facie the respondent has not provided a signed agreement of any kind. It has provided a “sample agreement”, which it would only enter into subject to designated pre-conditions being satisfied and subject to the applicant agreeing to all of the additional terms. Prima facie the respondent is in breach of Order 1.

41. Furthermore, 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 9 January 2020 does not constitute compliance 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. The stance taken by the respondent is prima facie one indicating an intention not to comply with Order 1.

40. In addition, many of the matters referred to in these preconditions were the subject of argument in the proceedings before Senior Member Sarginson, and findings have been made about these matters. Notwithstanding this the respondent continues to raise these matters contrary to those findings.

41. The respondent also submitted that Order 1 was “lacking in specificity and ignores the practical application of complying with the legislation and disclosure obligations.” By way of example, it was said that the Order did not provide for the provision of a disclosure document and a 14 day minimum cooling off period, as provided for by section 21 of the RLLC Act

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.

44. I note that by consent order (1) made in the Tribunal on 11 December 2015 the respondent was required to give the applicant a disclosure notice on or before 18 December 2015. If such a notice has been given, then there is no longer a necessity to give another one, because to date no relevant site agreement has been provided by the respondent to the applicant. If the respondent has not given such notice, no reason has been advanced by it as to why such notice has not been given. Given the persistent refusal of the respondent to provide a site agreement based on its insistence that it contained provisions to which the applicant is not agreed and on its insistence that preconditions be complied with notwithstanding they have been found to have been met, it would be inequitable and inappropriate to permit the respondent to seek to avoid responsibility for its failure to provide a site agreement based on such an argument.

45. Furthermore, the respondent has never previously raised the requirement to give a 14 day disclosure statement as a matter which would preclude it from complying with the order sought by the applicant. If this matter had been raised in the lengthy proceedings in the Tribunal this would have required the Senior Member to deal with it. There is no reference to it in the reasons and I infer that it was not so raised by the respondent.

46. I also reject the submission that the Order lacks specificity in the manner contended for by the respondent because by the time the proceedings came before Senior Member Sarginson the time for providing disclosure documents and a cooling off period had long since passed. The applicant was intent on securing a site agreement to consummate his contract to purchase a long-term residency. The focus of attention in those proceedings was directed to the impediments identified by the respondent, the essential nature of which are identified as relating to the failure of the improvements on the site to comply with various requirements, statutory and otherwise. Those matters which were raised by the respondent were clearly dealt with in the reasons for decision which culminated in the making of Order 1. The consideration of this matter overlaps with the determination of the competing positions of the parties which I have earlier identified in [35] and with which it is now necessary to deal.

47. 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 agreement reached by both parties, supports the position contended for by the applicant. My reading of the reasons for decision of Senior Member Sarginson in the context of the overall circumstances of those proceedings is indicative that he had considered and dealt with those impediments to the creation of a site agreement which had been advanced by the respondent. It was not contemplated that the respondent 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 site agreement enclosed with its letter of 9 January 2020. Even if this were not the case, the provisions of Order 1 do not contemplate in their terms the addition of clauses in the site agreement yet to be the subject of agreement. What was contemplated by Order 1 was clearly a form of agreement which reflected that contained in the Schedule, save for the addition only of those matters which I set out in [39]. 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.

48. I reject the submission of the respondent that in some way the Order has precluded it from complying with its lawful requirements. In that the respondent states that the additional terms are necessary to enable it to comply with its obligations under various legislation, it might be thought that those legislative requirements would apply in any event to the circumstances under which the applicant resided in the park and the respondent operated the park.

49. The Order was designed to resolve a dispute between the parties which has now been continuing for over 5 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 the prior proceedings in this Tribunal. It did not present any evidentiary material beyond mere assertions in support of its allegations that the improvements on the site were non-compliant. I note that the respondent was represented by counsel and solicitors in the proceedings being conducted before Senior Member Sarginson. The respondent had legal advice available to it, if it had wished to avail itself of that advice.

50. I conclude that there is, on the evidence, and having regard to the relevant statutory context no impediment to the respondent having complied with Order 1, at least by 17 February 2020 after the respondent’s appeal to the Appeal Panel was withdrawn. For the reasons I have set out, it is clear that the respondent has not complied with the Order.

Does the respondent have a “reasonable excuse” for having failed to comply with Order 1 after 17 February 2020?

51. Because of the position contended for by the respondent in its letter of 9 January 2020 the respondent has never submitted a form of site agreement as required by Order 1. It persisted in maintaining that position up until and during the course of the hearing before me on 4 December 2020. I have found that there was no justification in law for the respondent to have maintained that position.

52. In the course of its submissions, in addition to the matters which I have previously referred to, the respondent said that Senior Member Sarginson was in error when he

1. found that he was satisfied on the evidence that the structures were compliant with the Regulations as to setbacks and site coverage

2. “misinterpreted the facts and evidence” surrounding the respondent’s obligations as informing the purpose of the letter of 9 January 2020

3. took into account “irrelevant considerations” to the effect that the Council had said that it did not intend to take any future action with respect to the structures on the site, that the respondent had not required the previous site occupant to remove or modify the structures, and that there was no evidence that the structures were unsafe or deleteriously affected the use and enjoyment of the park by other occupants.

53. These submissions ignore the prima facie force and effect of the Order made in circumstances where it has not been successfully challenged, set aside or otherwise impugned by any Tribunal or Court having the power to do so. It is inappropriate to raise any of these matters by way of excuse for having failed to comply with the Order.

54. I note that the burden of demonstrating that there was a reasonable excuse for the failure to comply is borne by the respondent. If the respondent wished to demonstrate that there were relevant breaches of statutory and other provisions which applied to the site and the structures erected on it, it would have been a simple matter for the respondent to have adduced that evidence either before Senior Member Sarginson or before me to assist it in demonstrating that there was a reasonable excuse for failure to comply with the Order. The only material available consists of assertions made by the respondent in correspondence and in submissions before me, none of which is corroborated by any evidentiary material.

55. The respondent has failed to comply with the plain terms of the Order, it has consistently persisted in seeking to compel the applicant to provide evidence of compliance with matters which have already been addressed, it has persisted in raising arguments about matters where there are findings contrary to its position, it has failed to produce any evidentiary material in support of its position and has demonstrated a general unwillingness to provide the applicant with a long-term residency. I conclude 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

56. 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.

57. 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……….

58. 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".

59. In the circumstances of these proceedings it is clear that at all times the respondent was aware of the terms of the Order, but nevertheless persistently insisted that it was entitled to decline to obey it 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. There is in evidence a great deal of correspondence between the applicant and solicitors retained on his behalf 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 its wilful disobedience of the provisions of the Order.

60. I find that the respondent has demonstrated a contumacious disregard for the clear terms of the Order and has consistently declined to comply with it.

Conclusions

61. For the reasons advanced above, I find that the conduct of the respondent in failing to have provided a signed form of site agreement in compliance with Order 1 is capable of amounting to contempt.

62. 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.”

63. The second matter involves the personal circumstances of the applicant. He has had the benefit of an Order made in his favour which relates to property which he acquired in 2015, and which he has been precluded from enjoying despite the passage of over 5 years. Furthermore, he has had the benefit of that Order despite futile attempts by the respondent to deprive him of it at least since 17 February 2020, but with no ability to enforce it.

64. 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 enforce rights which have been afforded to him by an order of this Tribunal.

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

Costs

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

Orders

67. 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 Gennacker Pty Limited trading as Homestead Holiday Parks has committed contempt of the NSW Civil and Administrative Tribunal by reason of its failure to comply with Order (1) made on 28 June, 2019 in matter RC 18/31014 being in the following terms

By 14 days from the date of this decision, Gennacker Pty Limited trading as Homestead Holiday Parks is to provide to Jacques Fontainas a signed standard form site agreement in respect of site 33 at 200/25 Chinderah Bay Drive, Chinderah NSW 2487 (“the park”). The site agreement is to comply with Schedule 1 of the Residential (Land Lease) Communities Regulation 2015 (NSW). The fees, charges, and site fee increases stipulated in the site agreement are to be consistent with equivalent sites at the park which are the subject of current site agreements.

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

Decision last updated: 08 January 2021