Lakeside Mulwala Resort Pty Ltd t/as Big 4 Yarrawonga-Mulwala Lakeside Holiday Park v Gavin Allen and Karen Allen

[2014] NSWCATCD 58

Civil and Administrative Tribunal

New South Wales

Case Title:

Lakeside Mulwala Resort Pty Ltd t/as Big 4 Yarrawonga-Mulwala Lakeside Holiday Park v Gavin Allen and Karen Allen

Medium Neutral Citation:

[2014] NSWCATCD 58

Hearing Date(s):

6 November 2013; 12 February 2014

Decision Date:

30 April 2014

Before:

J Lennard, General Member

Decision:

The Tribunal is satisfied notice of the hearing was duly served on the respondent.

Gavin Allen and Karen Allen are to pay Lakeside Mulwala Resort Pty Ltd trading as Yarrawonga-Mulwala Lakeside holiday Park the sum of $7,429.60 on or before 19 February 2014.

The Tribunal finds that the caravan owned by Gavin Alan and Karen Allen has been abandoned.

The applicant is authorised to remove and dispose of the abandoned van.

Catchwords:

Compensation for lost rent

Legislation Cited:

Holiday Parks (Long-Term Casual Occupation) Act 2002 (NSW)

Category:

Principal judgment

Parties:

Lakeside Mulwala Resort Pty Ltd t/as Big 4 Yarrawonga-Mulwala Lakeside Holiday Park (applicant)
Gavin Allen and Karen Allen (respondents)

File Number(s):

GEN 13/52240

1       The Consumer, Trader & Tenancy Tribunal (CTTT) made orders in matter number GEN 13/22817 that the respondents pay the applicant the amount of $2,275.00, on or before 30 July 2013. The Tribunal noted that the respondents “shall remove the caravan and annex within 14 days of the payment”.

2 On 24 September 2013 the applicant made a new application to the CTTT seeking orders for compensation for loss caused by the abandonment of the site pursuant to section 33 of the Holiday Parks (Long-Term Casual Occupation) Act 2002.

3       A hearing was conducted on 6 November 2013; the applicant appeared by telephone and the respondents made no appearance. The matter was adjourned and the applicant was given leave to amend the claim.

4       On 18 November 2013 the applicant amended their claim to seek orders that the site had been abandoned, for the payment of compensation for loss caused by the abandonment and for disposal of the caravan and annex, the abandoned goods.

5       The matter was heard on 12 February 2014. The applicant appeared by telephone and was represented by Ms Booley, park manager. The respondents made no appearance: the Tribunal twice rang the mobile phone number supplied but it was not answered.

6 Pursuant to sections 32, 33 and 34 of the Holiday Parks (Long-Term Casual Occupation) Act the Tribunal may upon application by a park owner find that a site has been abandoned on a particular day, make orders for the payment of compensation for any loss, including loss of occupation fees, and make orders for the removal and disposal of any goods abandoned upon the site.

7       The applicant provided evidence that the respondents had paid the arrears as ordered by the CTTT, but had failed to remove the caravan and annex from the site. The applicant provided copies of written correspondence between the parties including:

(1)     a letter dated 6 August 2013 from the applicant to the respondents asking the respondents to remove the van and annex and noting that the site was a powered site and that the respondents would be charged daily rate until the van and annex were removed;

(2)     a letter dated 28 August 2013 requesting the respondents to organise removal of the van and annex pursuant to the CTTT orders; and

(3)     an invoice dated 28 October 2013 indicating that site fees at $35 per day were being charged.

8       The Tribunal is satisfied that the respondents have failed to remove the van and annex from the site and that they have pursuant to the Act abandoned the site and the van and annex, at the latest on 5 August 2013. The respondents are therefore liable to pay compensation to the applicant for the loss of occupation fees from 5 August 2013. The applicant provided evidence that the total amount of site fees owing from 5 August 2013 to the date of hearing was $7,429.60.

9       The applicant gave evidence that they had understood that the respondents had engaged a service to remove the van and annex, but that work had not been undertaken as the applicant understood that the respondents had failed to pay the service provider in advance. The Tribunal is satisfied that the applicants will continue to incur a loss for so long as the van and annex remain on the site. In all the circumstances it is appropriate that the tribunal makes orders authorising applicant to remove and dispose of the van and annex.

10     The applicant further gave evidence that they had been unsuccessful in contacting the respondents and that all letters to the respondents remained unanswered.

J Lennard
General Member
Civil and Administrative Tribunal of New South Wales

30 April 2014

**********