SES Village Pty Ltd v Hughes-Mason (No 2)

[2025] NSWCATCD 24

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

SES Village Pty Ltd v Hughes-Mason (No 2) [2025] NSWCATCD 24

Hearing dates:

25 March 2025

Date of orders:

23 April 2025 (Amended 24 April 2025)

Decision date:

23 April 2025

Jurisdiction:

Consumer and Commercial Division

Before:

G. Bassett, General Member

Decision:

(1)      The site agreement for [xxx] is terminated immediately and the respondent, Jessica Hughes-Mason, is to give vacant possession immediately

(2)      The order for possession is suspended until on, or before 23 July 2025.

(3)      Site fees are due and payable up to and including the day vacant possession of the site is given.

Amendments

(4) On 24 April 2025, the Tribunal makes the following amended order and amendment to written reasons under s 63 of the Civil and Administrative Tribunal Act 2013:

(a)   order (2) possession year amended to “2025”;    

(b)   paragraph 44(2) of the written reasons amended possession date to “23 July 2025”.

Catchwords:

LEASES AND TENANCIES — Legislation protecting tenants — Residential (Land Lease) Communities Act 2013 (NSW) — Serious misconduct — Termination of site agreement

Legislation Cited:

Residential (Land Lease) Communities Act 2013 s129

Civil and Administrative Tribunal Act 2013 s 8

Cases Cited:

Metford Road Pty Ltd trading as Morpeth Gardens Village v Hockley-Brown [2024] NSWCATCD 20

Category:

Consequential orders

Parties:

Applicant: SES Village Pty Ltd

Respondent: self-represented

Representation:

Applicant: Sabrina Bates, Chris Hughes

Respondent: in-person

File Number(s):

2023/00370975

Publication restriction:

unrestricted

REASONS FOR DECISION

Application and orders sought

1. On 14 November 2024, the community operator (“SES”) applied for a renewal of proceedings.

2. On 1 July 2024 various performance orders had been made after a hearing. The community resident (“Ms Hughes-Mason”) was to comply with performance orders rather than a site agreement being terminated.

3. Section 8 of the Civil and Administrative Tribunal Act 2013 states:

(1)  If the Tribunal makes an order in exercise of a Division function in proceedings, the Tribunal may, when the order is made or later, give leave to the person in whose favour the order is made to renew the proceedings if the order is not complied with within the period specified by the Tribunal.

(2)  If an order has not been complied with within the period specified by the Tribunal, the person in whose favour the order was made may renew the proceedings to which the order relates by lodging a notice with the Tribunal, within 12 months after the end of the period, stating that the order has not been complied with.

(3)  The provisions of this Act apply to a notice lodged in accordance with subclause (2) as if the notice were a new application made in accordance with this Act.

(4)  When proceedings have been renewed in accordance with this clause, the Tribunal—

(a)  may make any other appropriate order under this Act or enabling legislation as it could have made when the matter was originally determined, or

(b)  may refuse to make such an order.

4. The Tribunal made the performance orders on 1 July 2024 under s 8(1).

5. The community operator sought two orders on the renewal application as follows:

1. an order authorising the operator to arrange for the work to be carried out and to recover the reasonable costs from the homeowner, as directed by the NCAT

2. an order for termination of the residential site agreement for serious misconduct.

6. At a directions hearing on 11 December 2024 the renewal application was adjourned for a one-day hearing.

7. In the 1 July 2024 decision the Tribunal made extensive performance orders of two types. First, various orders were in relation to works to be done to structures at the site by Ms Hughes-Mason (the compliant structure orders). Secondly, a set of orders related to the steps to be taken by Ms Hughes-Mason regarding any engagement in serious misconduct at the community (the conduct performance orders).

8. At the renewal hearing the operator conceded that if the Tribunal makes an order terminating the site agreement the compliant structure orders would not be pressed.

Serious Misconduct

9. The conduct performance orders made on 1 July 2025 were as follows:

3. The respondent, Ms Hughes-Mason, must register with the community operator the attendance of any other occupants or guests at site 39 prior to the entry of the occupant or guest to the community area.

6. The respondent, Ms Hughes-Mason, must comply with the terms of the Site Agreement, to not interfere with, and to ensure as far as practicable that other occupants living / staying with her, or her guests, do not interfere with the reasonable peace, comfort or privacy of the community’s residents.

7. The respondent, Ms Hughes-Mason, must not cause, permit or allow other occupants living / staying with her, or her guests to seriously or persistently threaten or abuse the operator (or the operator’s agent or an employee or contractor of the operator or operator’s agent) or any resident of the community.

8. The respondent, Ms Hughes-Mason, must ensure site 39 is not used for any purpose that is illegal at common law or under an Act.

9. The respondent, Ms Hughes-Mason, is to comply with community parking rules in general, and to park her vehicle within the carport at Site 39.

10. The Residential (Land Lease) Communities Act 2013 (“RLLC”) empowers an operator to apply to the Tribunal to terminate a site agreement at s 129. It also sets out criteria to be considered if making such an order:

129   Application by operator for termination for serious misconduct

(1)  The operator of a community may apply to the Tribunal for a termination order on the ground of serious misconduct, without the need for a termination notice to be given.

(2)  The Tribunal may make the termination order under Division 3 if it is satisfied that a home owner (or any person who is occupying or jointly occupying the residential site) has intentionally or recklessly caused or permitted—

(a)  serious damage to any property in the community, or

(b)  injury to any person when lawfully present in the community, or

(c)  the residential site to be used for any purpose that is illegal at common law or under an Act, or

(d)  the operator (or the operator’s agent or an employee or contractor of the operator or operator’s agent) or any resident to be seriously or persistently threatened or abused.

(3)  The termination order may take effect before or after the end of the fixed term if the site agreement is for a fixed term.

Issue for determination

11. Given the concession of the community operator that any compliant structure orders would not be contested if the Tribunal terminated the site agreement for breach of the conduct performance orders the threshold issue for determination is whether the site agreement ought to be terminated for breach of the conduct performance orders.

12. In the principal determination of 1 July I was not satisfied Ms Hughes-Mason was a direct infringer. The decision states:

74. I am not satisfied that Ms Hughes-Mason intentionally or recklessly caused or permitted serious damage to any property in the community, such as the community lawns. I accept that, most fortunately, only minor injuries were caused to the part-owner in a terrifying scenario. That injury was caused by unregistered guests, not Ms Hughes-Mason. Illegal drug activity at site 39 was only the subject of suspicions of the operator. I am not satisfied that Ms Hughes- Mason engaged in serious misconduct in dealing in illicit drugs at site 39.

75. Nevertheless, the lamentable behaviour of her visitors has led the community management and other residents to have serious concerns for their reasonable peace, comfort, privacy and, at times, safety. The most just remedy in the circumstances of the case is that Ms Hughes-Mason engage in performance orders with respect to not permitting unauthorised and unregistered guests to attend her site. Ms Hughes-Mason ought to ensure that any future visitors give her forward notice of any visit to the community and, in turn, she gives notice to SES prior to the visitor(s) attending the community. A performance order is also made in relation to the behaviour of any authorised, registered visitors who attend at site 39. To protect SES’s position, a renewal order is made in respect of any breach of those performance orders so the Tribunal may reconsider any request for termination.

76. She said that if a person attends her site that she knows has been banned by the community operator she immediately asked them to leave. I am satisfied that if Ms Hughes-Mason complies with the order to preregister her guests prior to their entry to the park then any unregistered guest would be a trespasser. SES and Ms Hughes-Mason would have the benefit of the absence of any registration of attendance to show that person is a trespasser if police were to be called.

13. Having been satisfied Ms Hughes-Mason was an indirect infringer the purpose of the conduct performance orders was to ensure she took steps to show that she did not intentionally or recklessly cause or permit [my emphasis] any serious damage, injury to a person, use of the site for an illegal purpose or threat or abuse to the operator’s agent, employee or contractor of the operator or operator’s agent.

14. The issue is whether she has sufficiently complied with the conduct performance orders so that a site termination order would not be justified.

Evidence of the parties

15. The community operator stated performance conduct orders 3 and 6-9 had been breached. Evidence supplied was frequent breach notices issued to Ms Hughes-Mason since the last hearing of the matter 24 April 2024.

16. There are far too many conduct breach notices issued since the last hearing to detail in this determination. An accumulative summary list of breaches include:

1. visitors not being registered

2. unregistered guests leaving animals in vehicles unattended with police being required to rescue the animal

3. unregistered visitors speeding in the community and damaging grass in a common area

4. unregistered visitor damaging other vehicles in the car park

5. unregistered visitors yelling at, using offensive language towards community staff

6. after having been previously barred from the community, a frequent visitor to Ms Hughes-Mason parking at 02:02 AM and Ms Hughes-Mason and the visitor screaming and yelling at each other and using abusive and offensive language that woke neighbouring residents.

17. In exhibit A2 were further reports of incidents that had occurred since the parties had provided evidence for the renewal hearing.

18. A serious breach was notified relating to 30 December 2024. Ms Mason-Hughes had several unregistered guests at site 39. These guests abused management when asked for their ID to register. Later in the day 3 people parked inside and went to site 39 of Ms Hughes-Mason. When they left the site, they had a bag but were met by an unmarked police car waiting in the car park. Flashing lights of the police disturbed the peace and quiet enjoyment of residents. The car was searched. Two more police cars appeared. Residents were becoming increasingly concerned. One of the visitors was arrested and later charged with offences in relation to firearms, a prohibited drug and possession of ammunition.

19. On I February 2025, an unregistered guest left a dog to run at the front of the community. A resident hid in the amenities block. Another resident saw the dog locked in the pool yard. Residents gathered round the dog that was barking. A community employee told the unregistered visitor the dogs were not allowed in the community. That visitor became verbally abusive towards the employee. Both the unregistered visitor and the employee became involved in a physical altercation during which the dog bit the employee on the leg. The unregistered visitor left, still shouting offensive language. The employee sought medical attention at hospital and received stitches to the leg.

20. Ms Hughes-Mason gave a written statement and oral evidence. Instead of addressing breach notices in respect of alleged failure to comply with the conduct performance orders, in her written statement means she reagitated issues relating to the history of her site(s) and allegations the community operator wanted to gentrify the community.

21. She dismissed conduct performance order 3 to register or advise of visitors. She alleged community operator requiring photo identification for her guests was in contravention of the Privacy Act. In both her written and oral evidence she said order 3 only related to guests registering once, at some time in the past. She said she relied on many visitors telling her they had registered once in the past.

22. She denied the order meant she must register the attendance of any other occupants or guests with the community operator prior to the entry of the occupant or guest to the community [my emphasis]. She summed up her attitude by saying “ I thought once they were registered, they were registered”. She said she could not register visitors as different managers had failed to introduce themselves to her. She also said it was unreasonable to require visitors to register each time they came. During hearing she said “I think it’s ridiculous that I had to reach register visitors with the office”.

23. She said she sent a text message to management for one visitor on 27 October 2024. She said she had sent 3 text message notifications of visitors but was unable to locate those texts on her phone saying she had lost it and had a new one.

24. For the damage to a resident’s car she said her visitor was on a “rampage of jealousy” even though it appears the wrong car was damaged. On 28 July she told that visitor not to return.

25. In relation to the dog bite incident, she said there was no hospital discharge, just comments of a general practitioner.

Findings and determination

26. The purpose of the conduct performance orders and especially order 3 was to give Ms Hughes-Mason the opportunity to take specific actions to show that she wished to protect the interests of fellow residents and community management. She was to forewarn management of unapproved visitors.

27. In Metford Road Pty Ltd trading as Morpeth Gardens Village v Hockley-Brown [2024] NSWCATCD 20 (15 January 2024) (“Metford”) the Tribunal considered an application for termination of a site agreement under section 122 of the RLLC for serious and persistent breaches of the site agreement.

28. There is also a contractual term in a standard-form site agreement where residents are informed an operator may terminate the agreement for serious and persistent breaches of the agreement and / or for serious misconduct, following an application to the Tribunal under s 129. The factual circumstances in Metford involved direct breaches by a resident who peered into the house of a neighbour and other residents and stared into the back of the home of a neighbour as frequently as once a week.

29. I accept that Ms Hughes-Mason breaches have not been so direct but the problem is that s 129 extends liability to permitting any breaches.

30. Given its ordinary meaning, permit includes to grant permission to do something, to consent to or tolerate some action or to allow the possibility of an action occurring. In Metford the member found that the effect of any conduct on other residents must also be considered relevant.

31. In my view conduct can also be non-feasance – the lack of taking any action especially when such an action may already have been articulated in a conduct performance order.

32. Ms Hughes-Mason deliberately misconstrued her obligation under conduct performance order 3 to regularly report visitors prior to entry to the community. She did not even report at least one regular visitor that had been barred on previous occasions, more probably than not being aware when they were coming.

33. Worse, she displayed contempt for the purpose of Order 3 when she declared during her evidence “I think it’s ridiculous that I had to reach register visitors with the office”. This is a complete disregard for efforts made for her to save her site arrangement. Her evidence that visitors only had to register once at some time in the past was disingenuous.

34. No consideration was given to the position of the community operator or the concerns and fears of other residents that were raised during visitations of her unregistered and rambunctious visitors. The effect of her lack of action is that visitors persistently came all al times, behaved aggressively, caused an injury to at least one other employee and caused operator staff and residents to be in a constant and persistent state of fear while they were present.

35. The coming and going of many visitors for short period of times at all times of the day also enables the Tribunal to draw an inference that some illegal activity may have been occurring at Site 39. Police attendance was required on a number of occasions.

36. The assault on a community employee and the injury caused by their bite to their leg was reminiscent of an event that occurred before the conduct performance orders were made where an employee of the community who was pregnant was struck by a vehicle.

37. Even the incident where one unauthorised visitor sped through the community and tore up lawn in a common area was very reminiscent of a similar event that had occurred before performance conduct orders were made on 1 July 2024.

38. The toleration, indeed even encouragement of these visitors, by Ms Hughes-Mason had the effect of causing fear in the community and employees.

39. Ms Hughes-Mason put her head in the sand as to the impact of the behaviour of her unauthorised visitors on her fellow residents and community staff. When serious breaches were put to her such as the assault and dog bite, she belittled the claim by challenging whether the injury had even occurred and called on hospital records.

40. It is not hard to envisage that whenever Ms Hughes-Mason had visitors present at her premises (who were presumably authorised and unreported under performance conduct order 3) the rest of the residents in the community and the staff would be concerned and anxious wondering what might occur next.

41. Her lack of action was also reckless under s 129. Recklessness means acting with a conscious disregard of a substantial risk, where the risk might be unjustified. Ms Hughes-Mason would have known harmful consequences might arise from visits but permitted their continuance despite being aware of that potential harm.

42. The breaches of the conduct performance orders were serious, not minor. Further, the evidence of multiple breaches justifies a finding that the breach was persistent.

43. It is a profoundly serious step to terminate a site agreement. Ms Hughes-Mason will be required to move her home and, possibly community. But it is unlikely Ms Hughes-Mason would comply if further performance conduct orders were made. The continuing breaches over many years, the lack of regard for the orders made and the lack of any intention to change her conduct lead me to be satisfied on weighing up the evidence that termination is justified in the circumstances of the case.

Orders

44. I make the following orders:

1. The site agreement for Site 39 is terminated immediately and the respondent, Jessica Hughes-Mason, is to give vacant possession immediately.

2. The order for possession is suspended until on, or before 23 July 2025.

3. Site fees are due and payable up to and including the day vacant possession of the site is given.

Amendments

1. On 24 April 2025, the Tribunal makes the following amended order and amendment to written reasons under s 63 of the Civil and Administrative Tribunal Act 2013:

1. order (2) possession year amended to “2025”

2. paragraph 44(2) of the written reasons amended possession date to “23 July 2025”.

45. I note that if a termination order were made the community operator made an offer before the Tribunal at hearing to assist Ms Hughes-Mason with costs of moving her residence up to 300 kilometres from the community.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 29 May 2025