Hacienda Caravan Park Pty Ltd v Dodge

[2019] NSWSC 1296

Supreme Court

New South Wales

Medium Neutral Citation:	Hacienda Caravan Park Pty Ltd v Dodge [2019] NSWSC 1296
Hearing dates:	4 December 2018, further submissions invited on 30 September 2019 and provided by 11 October 2019
Decision date:	15 October 2019
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	(1) Grant leave to appeal. (2) Dismiss the appeal with costs. (3) Note that the form in which the site agreement should be entered into in accordance with order 1 of the Civil and Administrative Tribunal is the standard form as set out in Sch 1 of the Residential (Land Lease) Communities Regulation 2015 (NSW)
Catchwords:	LEASES AND TENANCIES – residential communities – where defendant purchased demountable home located on site within caravan park owned by plaintiff – absence of written site agreement – lengthy period of permanent residence and acceptance of rent – whether the Appeal Panel of the Civil and Administrative Tribunal erred in holding that the parties had entered into a site agreement within the meaning of the transitional provisions of the Residential (Land Lease) Communities Act
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), ss 82, 83 Holiday Parks (Long-term Casual Occupation) Act 2002 (NSW) Interpretation Act 1987 (NSW), s 35 Residential (Land Lease) Communities Act 2013 (NSW), ss 3, 4, 26(4); Sch 2, cl 5 Residential (Land Lease) Communities Regulation 2015 (NSW), cl 6 Residential Parks Act 1998 (NSW), ss 3, 8, 9, 16A Residential Parks Regulation 2006 (NSW), cll 3, 5, 6; Schs 3, 4
Cases Cited:	Barrier Wharfs Ltd v W Scott Fell & Co Ltd (1908) 5 CLR 647; [1908] HCA 88 Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 Hacienda Caravan Park Pty Ltd v Denley [2016] NSWCATAP 23 Hacienda Caravan Park Pty Ltd v Howarde [2016] NSWCATAP 1 Howard Smith & Co Ltd v Varawa (1907) 5 CLR 68; [1907] HCA 38
Category:	Procedural and other rulings
Parties:	Hacienda Caravan Park Pty Ltd (plaintiff) David John Dodge (defendant)
Representation:	Counsel: AJH Morris QC with LA Jurth (plaintiff) M Painter SC with T Glover (defendant)   Solicitors: Worcester Group (plaintiff) Tenants Union of NSW Co-op Ltd (defendant)
File Number(s):	2018/175487
Publication restriction:	None
Decision under appeal	Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Appeal Panel Citation: [2018] NSWCATAP 108 Date of Decision: 8 May 2018 Before: G Curtin SC, Senior Member; T Simon, Senior Member File Number(s): AP 18/05013

Judgment

1. HER HONOUR: Hacienda Caravan Park Pty Ltd seeks leave to appeal from a decision of the Appeal Panel of the Civil and Administrative Tribunal of New South Wales. The application is brought pursuant to s 83 of the Civil and Administrative Tribunal Act 2013 (NSW), which allows an appeal to this Court on a question of law but only with the leave of the Court.

2. Hacienda identified several alleged errors of law in the decision of the Appeal Panel which, as the argument was developed, reduce to two principal grounds of appeal. One raises a question of law concerning the proper construction of the legislation that governs residential communities at caravan parks. For that reason, leave to appeal was not opposed by the defendant, Mr David Dodge. I have concluded that leave to appeal should be granted but that the appeal should be dismissed. My reasons for that conclusion are as follows.

Circumstances in which the appeal is brought

3. The following summary is drawn primarily from the facts found by the Civil and Administrative Tribunal. Hacienda is the owner and operator of a caravan park and camping ground known as the Tweed River Hacienda Holiday Park (the Park) located at Chinderah in northern New South Wales.

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

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

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

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

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

(a) to improve the governance of residential communities,

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

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

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

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

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

9. The transitional provisions of the Act contemplated that an agreement entered into under the repealed Residential Parks Act would remain valid after the commencement of the new Act without the need to sign a new agreement. For the reasons already explained, Mr Dodge had never obtained an agreement in writing under the repealed legislation. He nonetheless contended that he had a binding agreement with Hacienda that fell within the terms of the transitional provisions.

10. In 2017, Mr Dodge applied to the Civil and Administrative Tribunal for an order under s 26(4) of the Residential (Land Lease) Communities Act requiring Hacienda to enter into a written site agreement in the prescribed standard form. The application was successful. The Tribunal found that, on a proper application of the transitional provisions (the detail of which is considered below), Mr Dodge had an agreement with Hacienda that was taken to be a “site agreement” under the new Act. As site agreements under that Act are required to be in writing, the Tribunal ordered Hacienda to prepare and enter into a written site agreement in the form prescribed by cl 6 of the Residential (Land Lease) Communities Regulation 2015 (NSW). I note that those orders incorrectly recorded that the agreement should be made in the standard form as set out in Sch 1 of the Residential (LandLease) Communities Act. The proper standard form is set out in Sch 1 of the 2015 Regulations.

11. Hacienda appealed to the Appeal Panel of the Tribunal. The appeal was dismissed.

12. By this appeal, Hacienda seeks an order setting aside the decisions of the Appeal Panel and the Tribunal, an order dismissing the proceedings before the Tribunal and a declaration the effect of which would be to uphold Hacienda’s contention that its agreement with Mr Dodge is an occupation agreement under the Holiday Parks (Long-term Casual Occupation) Act.

The transitional provisions

13. The transitional provisions are contained in Sch 2 to the Residential (Land Lease) Communities Act. Before turning to the detail of those provisions, it is helpful to explain the issue in general terms. As already noted, the reforms contemplated that agreements entered into under the repealed Act would remain valid after the commencement of the new Act. Clause 5, which addresses the topic of existing agreements, says so in terms, providing in clause 5(1):

“Agreements entered into under the repealed Act that have not been terminated remain valid after the commencement of the relevant provisions of this Act.”

14. Clause 5(3) provides the legislative mechanism by which that is achieved. It deals with three nominated kinds of agreement under the old Act and operates as a deeming provision, providing that any such agreement in force at the time of repeal of the old Act is taken to be a “site agreement” under the new Act. In short, the Tribunal’s approach was that, if Mr Dodge’s agreement with Hacienda was not governed by the Holiday Parks (Long-term Casual Occupation) Act, it followed that it must be one or other of the three kinds of agreement identified in clause 5(3) and that the only task was to work out which. Hacienda now argues that it is none of those and that Mr Dodge has no agreement of a kind that can be recognised under the new Act (the supplementary submissions note that Hacienda’s concession before the Tribunal was limited to conceding that Mr Dodge should have a site agreement if the “transitional provisions bring about that result”).

15. Clause 5(3) provides:

“A residential site agreement, moveable dwelling agreement or NPWS agreement (other than an excluded agreement) in force immediately before the repeal of the repealed Act is taken, on that repeal, to be a site agreement between the resident (as or on behalf of the home owner) and the park owner (as operator of the community in which the home is located).”

16. Although the dwelling bought by Mr Dodge was a demountable home, the Tribunal concluded that his agreement with Hacienda was a “moveable dwelling agreement” and not a “residential site agreement”. That provided the basis for Hacienda to argue before the Appeal Panel that Mr Dodge had neither a residential site agreement nor a moveable dwelling agreement and accordingly that he could not take the benefit of the deeming provision so as to be entitled to a site agreement under the new Act (it is common ground that he did not have the third kind of agreement, an “NPWS” or National Parks and Wildlife Service agreement).

17. While I can understand the path by which the Tribunal reached the conclusion that Mr Dodge’s agreement was a moveable dwelling agreement and not a residential site agreement, in my respectful opinion that conclusion was wrong, for reasons I will explain. That error has in turn informed the arguments that have followed. It seems to me that the correct analysis is that Mr Dodge had a residential site agreement under the old Act and that he is taken to have a site agreement under the new Act on that basis. That is not the conclusion that was reached by either the Tribunal or the Appeal Panel.

18. With that explanation, it is appropriate to set out the relevant provisions in full. Clause 5 of Sch 2 of the new Act (the transitional provisions) relevantly provides:

(1)  Agreements entered into under the repealed Act that have not been terminated remain valid after the commencement of the relevant provisions of this Act.

Note.

Accordingly, an existing agreement continues without the need to sign a new agreement once this Act commences.

…

(3)  A residential site agreement, moveable dwelling agreement or NPWS agreement (other than an excluded agreement) in force immediately before the repeal of the repealed Act is taken, on that repeal, to be a site agreement between the resident (as or on behalf of the home owner) and the park owner (as operator of the community in which the home is located).

(4)  An excluded agreement in force immediately before the repeal of the repealed Act is taken, on that repeal, to be a tenancy agreement.

…

(6)  In this clause:

excluded agreement means a moveable dwelling agreement or NPWS agreement under which a resident occupies a home that is owned by the park owner.

moveable dwelling agreement means an agreement of a kind referred to in clause 5(1)(c) or (d) of the Residential Parks Regulation 2006 as in force immediately before its repeal by this Act.

NPWS agreement means an agreement of a kind referred to in clause 5 (1) (e) of the Residential Parks Regulation 2006 as in force immediately before its repeal by this Act.

19. In order to determine whether Mr Dodge had a “moveable dwelling agreement” within the meaning of the transitional provisions it was necessary to go to clause 5(1) of the repealed Residential Parks Regulation 2006 (NSW), which was in the following terms:

(1) The standard form of residential tenancy agreement is:

(a) in the case of a residential site agreement that creates a tenancy for a term of 3 years or less—the form set out in Schedule 1, or

(b) in the case of a residential site agreement that creates a tenancy for a term exceeding 3 years—the form set out in Schedule 2, or

(c)  in the case of an agreement that creates a tenancy for a term of 3 years or less and is not a residential site agreement or an agreement with respect to land reserved under the National Parks and Wildlife Act 1974—the form set out in Schedule 3, or

(d)  in the case of an agreement that creates a tenancy for a term exceeding 3 years and is not a residential site agreement or an agreement with respect to land reserved under the National Parks and Wildlife Act 1974—the form set out in Schedule 4, or

(e)  in the case of an agreement that creates a tenancy with respect to land reserved under the National Parks and Wildlife Act 1974—the form set out in Schedule 5.

20. When the 2006 Regulations were in force, they regulated the terms of any residential tenancy agreement for which a standard form was prescribed, mandating the form of such agreements and providing that an agreement was void to the extent to which it was not in the prescribed standard form: ss 8 and 9 of the Residential Parks Act.

21. Schedules 3 and 4 to the 2006 Regulations prescribed a “Standard Form Moveable Dwelling Agreement” for a tenancy of three years or less and a tenancy of three years or more respectively. The Schedules contained a note in the following terms:

“This Form is to be used if the resident is to rent:

(a)    a site for the placement of a caravan that is owned by the resident and does not have a rigid annexe, or

(b)    a site and a home,

from the park owner.

22. Clause 3(2) of the 2006 Regulations was in the following terms:

Notes included in this Regulation (other than notes in the Schedules) do not form part of this Regulation.

23. Section 3 of the Residential Parks Act also provided the following definitions:

residential site agreement means a residential tenancy agreement under which:

(a) the park owner grants to the resident:

(i)    a right to install, on a residential site, a relocatable home, or a registrable moveable dwelling with a rigid annexe attached to it (being a relocatable home or registrable moveable dwelling owned by the resident), and

(ii)    a right to use the home or dwelling as a residence, and

(b) the resident occupies the premises as the resident’s principal place of residence, and

(c) in the case of an agreement entered into after the commencement of section 5, the resident has the approval of the park owner or park manager to occupy the premises as the resident’s principal place of residence, but does not include such a residential tenancy agreement with respect to land:

(d) that is within a Crown reserve, if the agreement was entered into after 16 December 1994, unless it is an agreement arising from a lease or licence under section 102 of the Crown Lands Act 1989 to which the Minister administering that Act has granted consent, or

(e) that is reserved or dedicated under the National Parks and Wildlife Act 1974.

residential tenancy agreement means any agreement under which a person grants to another person for value a right of occupation of residential premises for the purpose of use as a residence:

(a) whether or not the right is a right of exclusive occupation, and

(b) whether the agreement is express or implied, and

(c) whether the agreement is oral or in writing, or partly oral and partly in writing, and includes such an agreement granting the right to occupy residential premises together with the letting of goods.

The Tribunal’s decision

24. The appeal to this Court is confined to the decision of the Appeal Panel rather than that of the Tribunal: ss 82 and 83 of the Civil and Administrative Tribunal Act; Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [10] per Basten JA; Gleeson and Leeming JJA agreeing [37] and [61] respectively. Accordingly, it is not necessary to consider the correctness of the decision of the Tribunal. However, it is necessary to explain aspects of that decision by way of background.

25. At the outset of the hearing, the Tribunal expressed the view that the effect of the transitional provisions was that, if the Holiday Parks (Long-term Casual Occupation) Act did not apply, then Hacienda would be taken to have a site agreement with Mr Dodge. That appears to reflect an assumption that, between them, those two legislative regimes covered the field. As already noted, Hacienda’s supplementary submissions do not accept that was the effect of its concession. In any event, that is the basis on which the Tribunal evidently proceeded.

26. The Tribunal’s attention was accordingly confined to the threshold issue whether the relationship was governed by the Holiday Parks (Long-term Casual Occupation) Act. The Tribunal held that Act did not apply and on that basis took the parties to be in agreement that Mr Dodge should have a site agreement.

27. A premise of the Tribunal’s decision was its finding that, because Mr Dodge and his wife had continuously occupied the home and rent had been paid by them and accepted by Hacienda over some eight years, a binding agreement was to be implied from the parties’ conduct. There was no error in that approach. It is well established that post-contractual conduct is admissible on the question of whether a contract was formed: Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61 at [25] (Heydon JA) citing Howard Smith & Co Ltd v Varawa (1907) 5 CLR 68 at 77; [1907] HCA 38; Barrier Wharfs Ltd v W Scott Fell & Co Ltd (1908) 5 CLR 647 at 668, 669, 672; [1908] HCA 88.

28. However, the only terms of the agreement found by the Tribunal were that Mr Dodge would pay rent and that Hacienda would allow him to occupy the site “at will”. The Tribunal inferred that this agreement had commenced within one or two weeks of Mr Dodge taking occupation of the site. The notion of such a loosely-defined tenancy does not sit easily with the exacting, heavily-regulated regime of this legislative scheme.

24. Although the parties had agreed as to the Tribunal’s analysis of the transitional provisions (or so the Tribunal evidently understood), the Tribunal set out its understanding as to how it reached the result that Mr Dodge was entitled to a site agreement. In short, it appears the Tribunal reasoned that the transitional provisions covered the field; that it followed the agreement had to be a residential site agreement, a moveable dwelling agreement or an NPWS agreement; and accordingly that it must be a moveable dwelling agreement because it was neither of the other two.

25. As already noted, it was common ground that Mr Dodge did not have an NPWS agreement. The reason the Tribunal rejected the proposition that he had a “residential site agreement” was that it was an element of the definition of that term in s 3 of the Residential Parks Act that the resident had “the approval of the park owner or park manager to occupy the premises as the resident’s principal place of residence”. The Tribunal considered that Mr Dodge had never had that approval.

26. In light of the evidence about Mr Dodge’s failure to obtain a written agreement with Hacienda, I can understand how the Tribunal came to analyse the issue in that way. However, it seems to me to follow inexorably from the finding of an agreement in the terms found by the Tribunal (and the Tribunal’s rejection of Hacienda’s contention that the Holiday Parks (Long-term Casual Occupation) Act applied) that Hacienda was to be taken implicitly to have given the required approval. In any event, the matter moved forward on that basis.

The Appeal Panel’s decision

32. In the appeal to the Appeal Panel, Hacienda argued that the Tribunal had erred in two respects. The principal argument was that the Tribunal erred in holding that there was a binding agreement between Hacienda and Mr Dodge. Hacienda contended that there was no agreement at all or, if there was, that it was an agreement to which the Holiday Parks (Long-term Casual Occupation) Act applied (in which case Mr Dodge was not taken to have a site agreement under the new Act). The Appeal Panel rejected that ground: Hacienda Caravan Park Pty Ltd v Dodge [2018] NSWCATAP 108 at [91]-[94] and [101].

33. In the alternative, Hacienda raised an argument which the Appeal Panel noted did not appear to have been raised before the Tribunal. Hacienda argued that the Tribunal erred in holding that Mr Dodge had a moveable dwelling agreement within the meaning of the transitional provisions. That term was defined to mean “an agreement of a kind referred to in clause 5(1)(c) or (d) of the Residential Parks Regulation 2006 as in force immediately before its repeal by this Act”.

34. Hacienda argued that, for an agreement to be “of a kind referred to” in cl 5(1)(c), it needed expressly to contain the standard terms set out in the standard form agreement in Sch 3 which, according to the Tribunal’s findings (of a tenancy at will), it did not.

35. The Appeal Panel rejected that argument. It reasoned that Mr Dodge had a “residential tenancy agreement” within the meaning of s 3 of the Residential Parks Act; that s 16A of that Act contemplated that such agreements may not be in writing; and that s 16A(3) stipulated that a residential tenancy agreement that was not in writing was taken to include the relevant standard terms: Hacienda Caravan Park v Dodge at [108]-[120].

36. As far as it went, that reasoning appears to have been correct. The difficulty is that the Appeal Panel considered that issue through the lens of the Tribunal’s conclusion that the agreement Mr Dodge had was a moveable dwelling agreement rather than a residential site agreement. In that context, Hacienda put an alternative argument based on the note to the standard form agreement for movable dwelling agreements which Hacienda submitted qualified the agreements to which the form could apply. The note (the detail of which is addressed below) indicated that use of that form in the case of Mr Dodge was not appropriate.

37. Hacienda submitted that, by force of cl 3(2), and contrary to the usual understanding of the role of such notes, the note formed part of the regulation.

38. The Appeal Panel rejected that submission, categorising the note as “at most … a marginal note as referred to in s 35 of the Interpretation Act 1987 (NSW)” and not itself constituting regulation: Hacienda Caravan Park v Dodge at [121]. The Appeal Panel further considered that, even if the note had some regulatory effect, it was in conflict with the Residential Parks Act and the 2006 Regulations and, as the subordinate provision, must give way: at [122]-[124].

39. Alternatively, the Appeal Panel held that the words “of a kind” did not require exact conformity with the type of agreement referred to in Sch 3 of the 2006 Regulations: at [128]. As no statutory purpose could be discerned for differentiation between, for example, agreements by which residents rented a site and a home (which were expressly included by the note) and agreements such as the present case by which residents rented a site only (and which were not included by the note), the agreements were held to be “of a kind”: at [129]-[139].

40. The Appeal Panel accordingly dismissed the appeal.

The present appeal

41. The grounds of appeal in this Court reflect the two principal issues determined by the Appeal Panel, referred to by the parties as the “proper construction” ground and the “no agreement” ground.

The “no agreement” ground

42. It is logical to deal with the second ground first. In its written submissions in this Court Hacienda contended, as it had before the Appeal Panel, that there was either no agreement between it and Mr Dodge (because there was no offer and acceptance) or only an occupation agreement under the Holiday Parks (Long-term Casual Occupation) Act.

43. In support of the argument that there was no agreement, Hacienda relied on an earlier decision of the Appeal Panel in which it successfully ran the same point: Hacienda Caravan Park Pty Ltd v Howarde [2016] NSWCATAP 1 at [43]. However, as the passage relied upon correctly acknowledges, the absence of an articulated offer and acceptance is not determinative; a contract can also be inferred from the conduct of the parties. In Howarde, as here, the respondents had purchased a home on a site in the park managed and owned by Hacienda and wished to occupy it as their principal place of residence. As in the present case, Hacienda had instead provided them with an occupation agreement under the Holiday Parks (Long-term Casual Occupation) Act which they had refused to sign. Importantly, however, they never occupied the site. After they refused to sign the occupation agreement, Hacienda refunded the fee paid on application and requested the respondents to vacate the Park and remove the dwelling: see Howarde at [52].

44. The Appeal Panel in the present case was right to distinguish that case (which does not bind this Court in any event). The Appeal Panel observed that, in the present case, rent had been accepted over a period of eight years and that there had been no request for Mr Dodge and his wife to vacate the premises or remove the dwelling. The Appeal Panel upheld the Tribunal’s finding that there was a binding contract in the present case: Hacienda Caravan Park Pty Ltd v Dodge at [91]. In my view, that conclusion was plainly right, as appears to have been acknowledged at one point during the hearing of the appeal: Tcpt, 4 December 2018, p 13(41); cf supplementary submissions addressed below.

45. As already noted, Hacienda posited that the only alternative to there being no agreement was that the agreement was to occupy the site on the terms set out in the occupancy agreement provided to Mr Dodge in March 2010, which would have seen the relationship governed by the Holiday Parks (Long-term Casual Occupation) Act. Hacienda contended that, in either case (whether there was no agreement or only an occupancy agreement), the Tribunal did not have jurisdiction to make orders under the Residential (Land Lease) Communities Act.

46. In oral submissions in reply, Hacienda shifted away from that formulation of the issue, arguing instead that the question was not whether there was an agreement but “whether there was an agreement that gave rise to a tenancy and specifically a tenancy of the kind mentioned in the regulations”. Recast in those terms, the distinction between the two grounds of appeal became blurred. I am not persuaded that the submissions put under the “no agreement” ground raise any discrete question of law. To the extent that it was maintained as a discrete ground, I would reject it. On the strength of the Tribunal’s findings of fact not challenged before the Appeal Panel, the existence of an agreement was clearly to be implied.

The “proper construction” ground

47. The question of law raised by Hacienda’s first ground is whether the agreement between Hacienda and Mr Dodge was a “moveable dwelling agreement” within the meaning of cl 5, Sch 2 of the Residential (Land Lease) Communities Act. As already explained, the Appeal Panel held that it was, with the result that the agreement is now taken to be a “site agreement” under s 4 of that Act.

48. A “moveable dwelling agreement” is defined in cl 5, Sch 2 of the Residential (Land Lease) Communities Act as:

an agreement of a kind referred to in clause 5 (1) (c) or (d) of the Residential Parks Regulation 2006 as in force immediately before its repeal by this Act.

49. Clauses 5(1)(c) and (d) of the 2006 Regulations stated:

(1) The standard form of residential tenancy agreement is:

…

(c)  in the case of an agreement that creates a tenancy for a term of 3 years or less and is not a residential site agreement or an agreement with respect to land reserved under the National Parks and Wildlife Act 1974—the form set out in Schedule 3, or

(d)  in the case of an agreement that creates a tenancy for a term exceeding 3 years and is not a residential site agreement or an agreement with respect to land reserved under the National Parks and Wildlife Act 1974—the form set out in Schedule 4, …

50. Hacienda’s argument was that the tenancy created by the agreement cannot be classified as having a term exceeding three years and therefore cl 5(1)(d) does not apply. Although the argument was not made in the written submissions, it was further submitted at the hearing that, since the agreement was found by the Tribunal to be a tenancy “at will” (and therefore necessarily indefinite), it was a tenancy having no term at all and so could not be classified as creating a tenancy of less than three years. Hacienda submitted that such an outcome was not at odds with the legislative purpose as the legislation is idiosyncratic and no coherent purpose can be demonstrated.

51. I do not accept that submission. While there are some anomalies in the legislation, in my view it does evince an intention to regulate all varieties of agreement. In any event, the proper inquiry is what term was contemplated when the agreement was formed. As the Tribunal found, the agreement created a term that was certain to the extent that it would be taken to require a period of notice referable to the period of the rental payments made by Mr Dodge. That period was less than 3 years.

52. The next argument made by Hacienda under this ground was that the agreement is not a “moveable dwelling agreement” because it is not “of a kind referred to in clause 5(1)(c)” due to the incorporation by reference of the standard form in Sch 3 of the 2006 Regulations. Hacienda submitted that the note in the Sch 3 “standard form moveable dwelling agreement” limits the kind of agreement that can be said to fall within clause 5(1)(c). The note says:

This Form is to be used if the resident is to rent:

(a)    a site for the placement of a caravan that is owned by the resident and does not have a rigid annexe, or

(b)    a site and a home,

from the park owner.

53. Hacienda submitted that as Mr Dodge was renting a site but owned (and was therefore not renting) his home, and as his dwelling was not a caravan and in any case had a rigid annexe, the note excluded the application of the Sch 3 form to his agreement.

54. Hacienda submitted that the Appeal Panel erred in holding that the note was not part of the regulation, as cl 3(2) of the 2006 Regulations stated that:

Notes in this regulation (other than notes in the Schedules) do not form part of this Regulation.

55. In reaching the conclusion that the note was “not regulation itself” the Appeal Panel referred to s 35 of the Interpretation Act. That section deals with the treatment of marginal notes and states, at s 35(4):

A heading to a provision of an Act or instrument (not being a heading referred to in subsection (1)), or a marginal note, footnote or endnote in an Act or instrument, shall be taken to be part of the Act or instrument if:

(a)     it is referred to expressly, otherwise than by means of matter within some other provision of the Act or instrument (being matter in parentheses that merely sets out a heading to or describes the effect of the firstmentioned provision) or by means of a symbol, in some other part of the Act or instrument, or

(b)     not being so referred to, it is a heading, marginal note, footnote or endnote to a table or form in the Act or instrument.

56. In the present case, the note was a marginal note to a form and according to s 35(4)(b) should arguably be taken to be a part of the 2006 Regulations.

57. Much of the confusion surrounding the interpretation of the note has arisen due to the confined way in which the parties, and indeed the Tribunal and Appeal Panel, considered the 2006 Regulations. Another note appeared at the beginning of Schs 1 and 2 of the 2006 Regulations, being standard forms for residential site agreements (rather than for moveable dwelling agreements). That note read:

This Form is to be used if the resident is to rent:

(a)    a site for the placement of a caravan that is owned by the resident and has a rigid annexe, or

(b)    a site for the placement of a manufactured home that is owned by the resident.

58. Viewed side by side, the two notes appear to cover the field. The clear indication is that the old Act contemplated that persons in the position of Mr Dodge (that is, caravan park residents who own their own demountable home) would have a residential site agreement. As already explained, the Tribunal excluded that possibility on the strength of its conclusion that the required approval had not been given by Hacienda. However, the existence of such approval can be implied from the facts found by the Tribunal.

59. I tentatively reached that conclusion in circumstances where the proposition that the agreement between Mr Dodge and Hacienda was a residential site agreement rather than a moveable dwelling agreement was not argued at the appeal. Accordingly, it was necessary to afford the parties an opportunity to provide written submissions on that issue.

60. In his supplementary submissions, Mr Dodge contended that the position was as analysed above. He submitted that the findings of fact made by the Tribunal (which he noted have at no stage been challenged by Hacienda) support a conclusion that the agreement was a “residential site agreement”. The findings made as to Mr Dodge’s continuous occupation of the site, payment of rent and so on are summarised above. Mr Dodge submitted that the consequence of those findings is that “the tenancy which Mr Dodge in fact enjoyed without demur by Hacienda did, on any objective analysis, include Hacienda’s approval, whether express or implied, of his ongoing occupation of the premises as his principal place of residence”, which satisfied the requirement in paragraph (c) of the definition of “residential site agreement”.

61. Mr Dodge further submitted that he satisfies paragraph (b) of that definition because, as found by the Tribunal at [21], he occupies the premises as his principal place of residence.

62. Finally, Mr Dodge submitted that paragraph (a) of the definition of “residential site agreement” is satisfied because the home on site 201 is a “manufactured home” and “moveable dwelling” within the meaning of those terms in the Residential Parks Act, as found in the Tribunal at [6]. It was submitted that, as the home falls within those terms, it is also a “relocatable home” within the meaning of that term in the Residential Parks Act.

63. Hacienda in its supplementary submissions contended that it does not follow from the acceptance of rent and the absence of any request by Hacienda for Mr Dodge to leave the Park that the requirements of a “residential site agreement” are satisfied. Hacienda contested that conclusion on a number of grounds.

64. First, Hacienda reiterated its previous submission that the only agreement ever offered by it to Mr Dodge was an occupation agreement under the provisions of the Holiday Parks (Long-term Casual Occupation) Act. In that context, Hacienda relied on a decision of the Appeal Panel in Hacienda Caravan Park Pty Ltd v Denley [2016] NSWCATAP 23 which Hacienda described as a proceeding to which Mr Dodge was a party in which “the Appeal Panel allowed an appeal against [Mr Dodge] wherein he claimed to have an agreement to which the Residential Parks Act 1998 applied”. No point reference was provided. Having read the whole decision, I am confident that the submission is at best misconceived. The decision provides no support for Hacienda’s argument on the current issue. Most obviously, it does not bind this Court but even giving due deference to it as the decision of a specialist tribunal, the decision does not hold (as the submission appeared to suggest) that Mr Dodge does not have an agreement to which the Residential Parks Act applied.

65. The decision was concerned with applications by a number of persons, including Mr Dodge, who sought orders under the Residential Parks Act that the rent charged or proposed to be charged by Hacienda was excessive. The Tribunal’s jurisdiction to determine such applications only arose in the case of tenants under residential tenancy agreements to which the Residential Parks Act applies, which each of the applicants claimed to be.

66. In the hearing before the Appeal Panel in Denley, there was a contest as to whether the issue of jurisdiction had been raised before the Tribunal in respect of all applicants. The Appeal Panel set out the parties’ respective positions at [38]-[42] (Hacienda); [50]-[52] (persons claiming to be tenants) and [59] (Hacienda in reply). Hacienda’s position in reply was that, insofar as the question of jurisdiction was not raised as an issue before the Tribunal, leave should be granted to do so before the Appeal Panel. The Appeal Panel was satisfied that the question of jurisdiction had been raised by Hacienda, noting at [92] that the Tribunal had recorded an argument put by Hacienda “that the residents who have signed [an occupation agreement]” were not under the Residential Parks Act. However, it is an unchallenged fact in the present case that Mr Dodge and his wife refused to sign such an agreement.

67. Interestingly, Mr Dodge and his wife are listed in a schedule to the Appeal Panel’s decision in Denley as parties who entered an “Occupation/Residential agreement” on 29 March 2010. The decision of the Appeal Panel records at [98] that the Tribunal had said at [30] that those agreements were tendered by Hacienda. However, the Tribunal in the present case made a finding which has not been challenged by Hacienda that Mr Dodge and his wife did not sign that agreement and had indeed refused to sign it. Hacienda’s identification of Mr Dodge and his wife as parties to the Denley proceedings who had entered an occupation agreement on 29 March 2010 was at best aspirational.

68. In any event, having regard to the basis on which the appeal in Denley was allowed, the decision does not assist Hacienda at all in the present case. In short, the burden of the decision was that, in circumstances where the Appeal Panel was prepared to accept that jurisdiction had been put in issue by Hacienda, the Tribunal had not made the findings necessary to determine that question and accordingly the matter would have to be remitted so that findings could be made: at [106]-[112].

58. The second argument put forward by Hacienda in the supplementary submissions is that the payment and acceptance of rent did not necessarily point to the existence of a residential site agreement because it was consistent with the performance of the occupation agreement offered by Hacienda. Hacienda submits that, “despite [Mr Dodge] having initially not accepted the offered agreement, it was and remained the only agreement capable of acceptance or performance”. I do not accept that submission. To say that Mr Dodge “initially” did not accept the occupation agreement misstates the Tribunal’s finding. He rejected it: Dodge v Hacienda Caravan Park (Civil and Administrative Tribunal (NSW), 27 November 2017, unrep) at [15]. The contention that a form of agreement offered but clearly rejected remained the only agreement capable of acceptance ignores the principle to which I have already referred, that a contract can also be inferred from the conduct of the parties. One thing that cannot be inferred is that Mr Dodge at any point accepted that his demountable home could be characterised as a “holiday van” or that he would be constrained as to the number of days he could live there. He had no other place of residence: Dodge v Hacienda Caravan Park at [13].

59. The third argument put in Hacienda’s supplementary submissions is that, in the circumstances (apparently a reference to the argument that the only possible agreement was an occupancy agreement), there was no reason for Hacienda to ask Mr Dodge to leave the Park and no evidence that Hacienda knew it was Mr Dodge’s principal place of residence. The submission does not sit very comfortably with the decision in Denley discussed above. In that decision at [44(1)], the Appeal Panel noted that Hacienda had submitted:

“the findings that each of the respondents occupied the premises as their principal place of residence was inappropriately treated by the Tribunal ‘as an admission or acceptance by the Appellant’ that agreements had been made under the RP Act.”

71. That suggests that Hacienda did not challenge the finding that each of the respondents in fact occupied the premises as their principal place of residence. The challenge was to the legal conclusion drawn from that finding.

72. There cannot be any genuine dispute as to whether Hacienda knew Mr Dodge and his wife occupied the premises as their principal place of residence. As noted above, the Tribunal found at [21] that they do in fact occupy the premises on that basis and Hacienda has not challenged that finding. As owner of the Park, Hacienda would be taken to have constructive knowledge of that fact. In any event, the jurisdiction of this Court is confined to consideration of the legal question raised by the grounds of appeal on the facts found by the Tribunal.

73. Hacienda submitted that the only alternative to its analysis (that there was an occupancy agreement governed by the Holiday Parks (Long-term Casual Occupation) Act) is that there was no agreement. For the reasons already explained in my consideration of the “no agreement” ground, I do not accept that submission.

74. Mr Dodge’s submissions have reinforced my tentative conclusion that, on the facts found by the Tribunal, the correct legal conclusion is that the agreement between Mr Dodge and Hacienda was a residential site agreement.

75. Accordingly, in my view, the Appeal Panel’s disposition of the appeal was correct, albeit on the strength of a different analysis of the questions of law raised. In light of that conclusion, it is not necessary to address the alternative arguments put by Hacienda.

76. For those reasons, I make the following orders:

1. Grant leave to appeal.

2. Dismiss the appeal with costs.

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

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Decision last updated: 15 October 2019