Hull v Barnes Property Investments Pty Ltd; Barnes Property Investments Pty Ltd v Hull

[2015] NSWCATCD 136

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Hull v Barnes Property Investments Pty Ltd; Barnes Property Investments Pty Ltd v Hull [2015] NSWCATCD 136
Hearing dates:	27 August 2015
Decision date:	22 October 2015
Jurisdiction:	Consumer and Commercial Division
Before:	K Ross, General Member
Decision:	The Park Owner’s application for termination is dismissed. The resident’s claim for compensation for breach of s 20 of the Act is dismissed.
Catchwords:	Breach, injury, termination, penalty
Legislation Cited:	Residential Parks Act 1998
Category:	Principal judgment
Parties:	Barnes Property Investments Pty Ltd t/as Bayside Gardens Lifestyle Village (respondent/cross applicant) Douglas Arthur Hull (applicant/cross respondent)
Representation:	L. Pawlak, Solicitor, for the Park Owner M Frangos, Solicitor for the Resident
File Number(s):	RP 15/33823 and RP 15/35081
Publication restriction:	Unrestricted

reasons for decision

Applications

1. Douglas Arthur Hull (“the Resident”) seeks an order for compensation for an alleged breach of his right to quiet enjoyment of his residential premises, arising from an incident which occurred on 27 April 2015. The Resident seeks the imposition of a penalty of 5 penalty units. The Park Owner opposes the orders sought by the Resident.

2. Barnes Property Investments Pty Ltd (“the Park Owner”) seeks orders, arising from the same incident, under s 113 (1) for termination of the resident’s site agreement, and an order for possession of the site, based on an alleged breach of s 21 (c) and (d) of the Act, and a breach of s 31. In the first alternative, the Park Owner seeks termination and possession pursuant to s 117 (b). In the second alternative, the Park Owner seeks an order that the Resident comply with the terms of his residential site agreement, and s 117 of the Act, and allowing renewal of these proceedings within 24 months if the order is not complied with. The Resident opposes the orders sought by the Park Owner.

Resident’s evidence

3. The Resident gave evidence and was cross examined. He also relied upon evidence from his daughter, Aly and her boyfriend Liam Williams. He provided two references relating to his daughter, 3 medical reports and a series of photos.

4. The resident gave evidence in his written statement that at about 5.10 pm on 27 April 2015 he received a call from his daughter. She said to him words to the effect

“Dad, Jamie Barnes and that Workman guy have blocked the entry gate and said that I have to walk up. My foot is hurting and I have told Jamie that.”

5. As a result of that phone call, Mr Hull says he drove towards the front of the Park. As he approached the gates he saw Jamie’s jeep blocking the entry gate. He took a photo of the jeep. He drove past Mr Workman. As he neared the gate Mr Barnes said to him words to the effect:

JB: “Mr Hull, another one who can’t walk”.

6. He says that he found this to be offensive. He then says that a conversation ensued, as follows:

DH: “You can’t do this. Why are you locking Aly out of her home?”

JB: “Mr Hull, he nearly ran my brother over.”

DH: “Being a bully and a coward again. I suppose you’ll slash more tyres tonight.”

JB: “More accusations. I guess we’ll end up in Court again.”

DH: “Yes, but this time I’ll have a barrister.”

PW: “He’s getting angry. Let’s just leave it alone.”

7. Mr Hull says that he began to drive out of the Park. As he did, Mr Workman (PW) yelled out:

PW: “What’s your problem? Do you want to have me?”

8. He says that at this “threat of violence” he began to have an anxiety attack. Aly got in the car. She yelled out to Liam:

AH: “Come on Liam. We are getting out of here.”

9. Under cross examination, Mr Hull said, in answer to the question:

“Did you yell at him?”

DH: “I spoke very loudly, as you do to a bully.”

10. He conceded that he called Mr Barnes a bully and a coward. He denied saying he was going to bash him, and said:

“They were his words, not mine. They were the words he used about Judd. That’s where the words come from. Not my words.”

11. When it was put to Mr Hull that he went to pick a fight with Mr Barnes, he denied that proposition before adding:

“I went to get my daughter as he might have hurt her, as he has before. Amy Judd. Clarke – she has already sold out. The Hayley Phillips file is an inch thick of what he did to her.”

12. Aly Hull gave evidence that she arrived with her boyfriend Liam at the Park at about 5.00pm. Jamie Barnes blocked the entrance with his jeep and said:

“Park in the car park, son.”

13. Aly says she said to Mr Barnes:

“but I have a sore foot.”

14. Under cross examination she conceded that she said this from the passenger seat, with the window closed, and Mr Barnes may not have heard her.

15. She called her father. He came down. She says that she heard Barnes say:

“Mr Hull, another one who can’t walk.”

16. She then began to record the incident. She says that the incident proceeded thus:

DH: “You can’t do this. Why are you locking Aly out of her home?

JB: “He’s not allowed in because he tried to run over my brother.”

DH: “You’re a bully and a coward.

17. She says that threats were then made about taking each other to Court. She got into her father’s car. As they drove off, she says that Jamie Barnes and Mr Workman were shouting things such as:

“What’s your problem?” “Do you want to have a go?” “We’ll bash you.”

18. She said that she saw that Liam was not following. In her statement she said that she walked back to Liam’s car. Under cross examination she said that she walked fast, but she did not run. As she arrived she heard Mr Barnes and Mr Workman yelling at Liam:

“Do you want to have a go?”

19. Liam Williams gave evidence that when he drove up to the entrance, on the night in question, he was asked to wait in the car park. He says that Hull and Barnes were yelling at each other. He heard Hull call Barnes a coward and a bully. Workman yelled at Hull:

“What’s your problem? You want me?”

20. He says that as Aly and her father left the Park, she signalled for him to follow. However he was approached by Barnes and Workman, yelling at him:

“What’s your problem? Come out and have a go.”

JB: “Get out of the fucking car and have a go. You’ve already come into the Park and tried to run my brother over.”

LW: “I had only just got my license. I might have been driving a bit over the confidently but I slowed down as soon as I saw the workman.”

21. He also said, during cross examination, that he said to them:

“What’s your problem?”

22. He gave evidence that Aly jogged back to the car, at which point Workman and Barnes walked away from his car, and he drove out the front of the Park where Aly’s Dad was waiting in his car.

Park Owner’s evidence

23. The Park Owner gave evidence and was cross examined. He also relied upon evidence from the park manager, and a resident who witnessed part of the incident. He provided CCTV footage, a copy of a letter to Mr Hull dated 30 September 2014, an email in relation to the CCTV cameras, a copy of the Park Rules and the Notice of termination, a Police victim follow up, photos, a map of the village and a report in relation to the operation of the cranes in the village. Mr Barnes’ wife provided a statutory declaration but was not required for cross examination.

24. Jamie Barnes gives evidence in his statutory declaration that Mr Hull approached him in his vehicle, waving his arms about , calling him a bully and saying:

“are you going to slash my tyres again?”

25. He says:

“He told me he is going to wait out the front of the Village for me and he is going to punch my head in.”

26. He said:

“At this time Paul Workman walked over to me. Mr Hull then told Paul he would punch his head in too.”

27. In his oral evidence, he repeated this evidence.

28. He denied that he made threats to Hull, or to Liam Williams. He said that Liam Williams yelled out:

“What’s your problem mate? Do you wanna have a go?”

29. Paul Workman is the Park’s resident manager. He gave evidence that he also heard Mr Hull and Liam Williams abuse and threaten the Park Owner. He said:

“Doug wanted myself and Jamie out the front of the Park where he was going to punch our heads in.”

30. Nicole Grace, who is a resident in the Park, gave evidence in her statutory declaration that she arrived at the gate as Aly was running back towards Liam’s car. She was not a witness to the incident between Mr Hull and Mr Barnes and Mr Workman. She says that she heard Aly scream:

“Fuck off”.

31. She also said that

“The boyfriend was giving Paul and Jamie a mouthful.”

32. She said that later that night, Mr Hull told her that he was trying to get Barnes out the front, but he wouldn’t come because the cameras don’t go that far.

33. In her oral evidence, Ms Grace expanded on her earlier evidence. She said that Liam had his arms outstretched, and was motioning and saying:

“Come on, come on.”

34. The Park provided CCTV footage of the incident.

Findings and decision

35. In attempting to reconcile the conflicting versions of the evidence, the Tribunal notes that each of the players operates with preconceived notions of the others. This is evident in the following:

1. Mr Hull arrives, screaming at Mr Barnes that he is a coward and a bully. This evidence is not contested. Whilst Mr Hull says he was not yelling, but was speaking “in a loud voice, as you do to a bully”, the Tribunal accepts the evidence of Barnes, Workman and Liam Williams that he was yelling.

2. Mr Hull gave evidence that he was frightened that Mr Barnes might hurt Aly, and gave as his reason his version of previous disputes in the Park involving other residents.

3. Mr Hull believes that Mr Barnes can box. Mr Barnes denies this, but nonetheless, Mr Hull holds a firm belief in the truth of his assertion.

4. Mr Barnes makes reference in his statutory declaration to previous cases between himself and Mr Hull. He also gave evidence that he is intimidated by Mr Hull stretching his neck.

5. Both Mr Barnes and Mr Workman made reference, as one of the reasons why they stopped Liam Williams at the gate, to a previous incident in which they say Mr Williams attempted to run over Mr Barnes’ brother.

6. Mr Williams says that he acted in stopping his car when he did, because he was frightened that he had previously been accused of trying to run over Mr Barnes’ brother.

36. The Tribunal finds that, despite their denials, on the balance of probability Hull did make the threats attributed to him by Barnes, and both Barnes and Workman made the threats attributed to them by Hull. The making of the threats is consistent with the preconceived attitudes which each party has of the other. The Tribunal finds that each of the parties threatened the other during the interchange between them.

37. Each of the parties gave evidence to suit the case which he was advancing. Ms Hull insisted that she did not run to Liam’s car, but even taking into account the differential speed on the CCTV footage, it is apparent from that footage that she did. Her attempt to justify this evidence by reference to her background in competitive running was not persuasive.

38. Mr Hull is so preoccupied with past disputes between himself and the Park Owner that all his evidence is coloured by that preoccupation. He admits to driving up to the gate, accusing Barnes of being a coward and a bully, and “speaking to him as you do to a bully”. The Tribunal accepts the evidence of Mr Barnes that Mr Hull would not listen to any explanation, and would not have accepted it had he heard it.

39. Mr Barnes evidence is also coloured by his distrust of Mr Hull. He is threatened by Mr Hull “stretching his neck”, and engaged in the interchange on the day in question by referring back to previous disputes.

40. Mr Workman has taken on the case on behalf of Mr Barnes. His statement in his statutory declaration that “I believe we (sic) would be easily lead to acts of violence on behalf of others”, apparently in respect of Liam Williams, and his reference to the previous incident involving Mr Williams and Mr Barnes’ brother illustrates his preconceived notions and his preparedness to be influenced by them.

41. The Tribunal notes that whilst the situation which sparked the incident was the Park Owner’s refusing access to the park to Mr Williams, the escalation in the incident occurred when Mr Hull arrived, yelling from his car and photographing Mr Barnes. The Tribunal accepts that Mr Williams was denied access, both because there was work being carried out in the Park, but also based on the previous incident involving Mr Williams and Mr Barnes’ brother. However, Ms Hull was free to enter the Park, and her later actions in running towards Liam’s car shows that she could have walked home without too much difficulty. Instead she called her father, who rather than simply collecting her from the gate, began abusing Mr Barnes and Mr Workman. In return, Mr Barnes and Mr Workman engaged in the exchange of abuse.

42. The Tribunal found Mr Williams to be a witness whose evidence could be accepted. He made concessions against interest, for example in agreeing that Mr Hull was yelling, and that Aly ran to his car. He also conceded, under cross examination, that he said to Barnes and Workman “What’s your problem?” The CCTV footage shows that he did not engage in the abuse between Hull and Barnes and Workman, and did not attempt to leave the car when they approached him. The Tribunal is not satisfied that Mr Williams breached the agreement as alleged by the Park.

Decision

43. The issue for the Tribunal is what consequence should flow from the findings made. In respect of the resident’s application, the Tribunal has no power to impose a penalty as sought. The Act provides by section 148 that proceedings for a penalty under the Act are to be taken in the Local or Supreme Court. The Tribunal has no jurisdiction to impose the penalty sought by the resident.

44. In any event, whilst the Tribunal is satisfied that Mr Barnes breached the tenant’s right to quiet enjoyment within the Park, the Tribunal is satisfied that the breach occurred in the context of the resident’s breach of the Park Owners rights. The Tribunal is not satisfied that any sanction is appropriate, taking into account all of the circumstances.

45. In respect of the Park’s application, the Tribunal accepts that Mr Hull’s abuse directed towards the Park Owner and his employee amounted to a breach of the Park Owner’s peace comfort and privacy. However the Tribunal is not satisfied, in all the circumstances, that the breach is sufficient to justify termination of the agreement.

46. The Park Owner also submitted that the agreement should be terminated on the basis that it is likely that the resident will cause injury to the Park Owner or the Park manager. The Tribunal is not satisfied that a close examination of the incident in question supports this submission. Whilst there is a long history of disputes between Mr Hull and Mr Barnes, the details of those disputes were not in evidence in these proceedings. Based upon this incident alone, the Tribunal is not satisfied that the Park Owner has shown that it is likely that Mr Hull will cause injury as feared by the Park Owner.

47. The Tribunal has considered whether a specific performance order should be made, as requested by the Park Owner. However the Tribunal notes that each party has an obligation to comply with the agreement and with the Act. An order to that effect is not necessary. Any future breach can be the subject of an application. Nothing further is served by enabling the renewal of these proceedings.

48. For these reasons, both applications are dismissed.

K Ross

General Member

Civil and Administrative Tribunal of New South Wales

22 October 2015

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 2016