Simon Gwyther and Tyler Gwyther as Executors of the Estate of Jeffery David Gwyther v NSW Crown Holiday Parks Trust t/as North Coast Holiday Park
[2014] NSWCATCD 109
•25 June 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Simon Gwyther and Tyler Gwyther as Executors of the Estate of Jeffery David Gwyther v NSW Crown Holiday Parks Trust t/as North Coast Holiday Park [2014] NSWCATCD 109 Hearing dates: 19 May 2014 Decision date: 25 June 2014 Before: K Holwell, General Member Decision: The Tribunal finds:
1.There are no restrictions on the sale of the resident's dwelling;
2.The applicants may sell the resident's dwelling to any person subject to that person being accepted as a resident at the park;
3.The respondent cannot impose a condition on the sale that the purchaser cannot on sell the dwelling to any person;
4.The respondent cannot impose a condition on the sale that the purchaser can only sell the dwelling to the respondent;
5.If the respondent imposes conditions (c) or (d) in respect of any potential purchaser of the resident's dwelling it would be interfering with the sale;
6.No compensation is payable re the failure to sell the dwelling in October or November 2013.
Legislation Cited: Residential Parks Act 1988 (NSW) Category: Principal judgment Parties: Simon Gwyther and Tyler Gwyther (applicants)
NSW Crown Holiday Parks Trust (respondent)File Number(s): RP 14/01015
reasons for decision
Application
By an application filed 8 January 2014 the applicants sought an order for the resolution of a dispute concerning the sale of a dwelling at the respondent's residential park.
Subsequently the applicants sought an order restraining the respondent from interfering with the sale of the dwelling and an order for compensation.
Jurisdiction
The Tribunal has jurisdiction to hear and determine this application pursuant to the Residential Parks Act 1998 (NSW).
Proceedings
A directions hearing was held on 7 February 2014. The case could not be settled on that day. It was set down for hearing on 19 May 2014. It was heard on that day. Thereafter the decision was reserved pending the giving of these reasons. The hearing was sound recorded.
Evidence
Mr S. Gwyther and Mr T Gwyther and Mr B. Shiels gave short oral evidence. A number of documents were tendered. Ms A. Revie and Mr B. Shiels made detailed submissions about the legal issues.
It is not practical to recount all the evidence, submissions and the contents of the documents. In making findings I shall endeavour to refer to the main features of the evidence and issues in dispute.
The Law
The Residential Parks Act by s 80 provides (1) It is a term of every residential tenancy agreement under which the residential premises consist of a residential site only that the resident is entitled to sell the relocatable home or other moveable dwelling installed on the residential site to which the agreement relates while the dwelling is in place on the residential site, unless the residential tenancy agreement expressly provides that on-site sales are prohibited and (2) This section does not apply to a residential tenancy agreement with respect to land that is within a Crown reserve or that is reserved or dedicated under the National Parks and Wildlife Act 1974.
The Residential Parks Act by s 82 provides (1) A residential tenancy agreement under which the residential premises consist of a residential site only may set out any restrictions on the sale of a relocatable home or other moveable dwelling while it is installed on the residential site. Any other such restriction that the park owner purports to impose is unenforceable and (2) A park owner must not interfere with the sale, by a resident of the residential park, of a moveable dwelling while it is installed on a residential site.
The Residential Parks Act by s 85 (1) (c) provides that a park owner or a resident of a residential park may apply to the Tribunal for the resolution of any dispute concerning interference by the park owner or other person with the sale of a moveable dwelling while it is installed in a residential park. By s 85 (2) (c) The Tribunal may make an order preventing interference with the sale of the moveable dwelling.
Findings
The respondent manages a residential park at Brunswick Heads. The park was previously managed by Byron Shire Council. The park is Crown land.
On 10 October 1998 Jeffery David Gwyther ("the resident") entered into a site agreement with Byron Shire Council re site 46 at the Brunswick Heads park. The agreement was made prior to the Residential Parks Act being assented to on 8 December 1998.
On 1 October 2000 the resident entered into a further site agreement with Byron Shire Council re site 46.
In both agreements Byron Shire Council was named as the park owner. The Council did not disclose that it was a trustee or manager of Crown land. There is no reference in either agreement to site 46 being within a Crown Reserve.
Both agreements provided for the resident to assign the site agreement subject to the park owner's approval. There were no restrictions on the sale of the resident's movable dwelling in either agreement.
The agreements were not varied in writing.
In about October 2013 the resident decided to sell the dwelling on site 46. He obtained a potential buyer but the sale did not eventuate. The applicants say that the buyer was informed by the respondent that he could purchase the dwelling but he would not be allowed to sell the dwelling to another purchaser given the respondent's policy against on selling.
The resident died on 13 November 2013.
The dwelling on site 46 has been vacant since that date. The applicants as executors of the resident's estate are anxious to sell the dwelling but a problem exists in respect of the respondent seeking to impose the condition that any purchaser cannot on sell the dwelling.
The respondent commenced management of the Brunswick Heads park in 2006.
In January 2011 the respondent informed residents at its parks of on selling conditions including that the owner agrees to give the respondent first option to purchase the property when on selling.
On 16 February 2011 the respondent sent a letter to residents stating that on selling rights had not changed, that a resident has the right to on sell the dwelling subject to the dwelling being compliant and subject to the purchaser being approved as a resident at the park. However, notwithstanding those statements, the letter when on to state that there would be conditions applied to assignment including the respondent having the first right of purchase. There is clear conflict in respect of the contents of the letter. On the one hand the respondent is saying to a resident that he or she can sell to an acceptable person and on the other hand it is saying that the respondent has the first right of purchase.
Information on a government web site states that despite the changes announced by the respondent, existing site agreements would continue.
However, the evidence at the hearing was that the policy to not allow on selling and have the respondent purchase the dwellings would enable the respondent to reduce the number of permanently occupied dwellings and increase the number of sites which would be available for casual occupation.
In my view this case has to be approached having regard to the terms in the resident's agreements and having regard to the circumstances that existed when those agreements were made in 1998 and 2000. In both 1998 and 2000 there were no restrictions on the resident selling to the public at large.
The policy of the respondent has changed since 2000 but the respondent cannot impose this policy change unilaterally. If it wanted the policy to apply to a particular resident after 2011 it seems that it should have arranged to seek the variation of the site agreement to provide the restriction re on selling.
It is true that the Residential Parks Act by s 80 (2) provides that a resident cannot sell the dwelling on the site if it is on a Crown Reserve. However I am satisfied that the respondent cannot rely on this sub-section for two reasons: first, the fact that the site was on Crown land was never disclosed to the resident and Byron Shire Council represented to the resident that it was the park owner not the Crown and second, the respondent is not submitting that the resident cannot sell because it is Crown land. The respondent has a different submission - it is saying the resident can sell but the person to whom the resident sells the dwelling cannot on sell it.
If the respondent's submission was that it relied upon s 80 (2) explicitly and that the resident could not sell the dwelling otherwise than to the respondent the situation may be different even though there are the problems about the non-disclosure by Byron Shire Council.
The Tribunal has to determine in regard to this resident in particular (and not in respect of any person coming to the park after the change of policy in 2011) whether the respondent can impose a condition on the sale of the resident's dwelling. The Tribunal determines that the respondent cannot impose this condition for two reasons: firstly, there are no restrictions on the sale of the dwelling in the site agreements and secondly, s 82 (1) provides that any other restriction which a park owner seeks to impose is unenforceable.
There was a claim for compensation re the sale which did not eventuate in October or November 2013. I am not prepared to order compensation for these reasons. The respondent was at the time seeking to impose the condition in its 2011 policy presumably without contemplating whether it could be imposed retrospectively on residents with site agreements from years ago. The respondent's employees were, in my view, acting in good faith and seeking to impose the instructions from the Trust. Also, there was no evidence from the potential purchaser and consequently there was no sworn evidence from the purchaser that the imposition of the condition was the sole reason for the sale not eventuating.
Conclusions
The Tribunal finds:
1. There are no restrictions on the sale of the resident's dwelling;
2. The applicants may sell the resident's dwelling to any person subject tothat person being accepted as a resident at the park;
3. The respondent cannot impose a condition on the sale that the purchaser cannot on sell the dwelling to any person;
4. The respondent cannot impose a condition on the sale that the purchaser can only sell the dwelling to the respondent;
5. If the respondent imposes conditions (iii) or (iv) in respect of any potential purchaser of the resident's dwelling it would be interfering with the sale;
6. No compensation is payable re the failure to sell the dwelling in October or November 2013.
K Holwell
General Member
Civil and Administrative Tribunal of New South Wales
25 June 2014
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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: 04 September 2014
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