Bavin v Parklea Operations Pty Ltd Trading As Gateway Lifestyle Stanhope Gardens

The Decision under Appeal

1. The Member noted that issues similar to those raised in the application before her had been considered by Member Priestley in Reckless v Silva Properties Pty Ltd t/as Ballina Waterfront Village and Tourist Park [2017] NSWCATCD 57. The Member noted the evidence that Gateway Lifestyle comprises 362 residential sites, 208 of which have electricity supplied by the operator rather than directly. One hundred and seventy two lots built between 2012 to 2015 have access to 32 amperes rather than the usual 60 amperes in their electricity supply. The evidence was that in early 2015 the cents per kWh charge was around 27 cents; between February 2015 to February 2017 it was around 16 cents per kWh. The access fee is $8.96 per fortnight. As and from 1 July 2017 the usage charge per kWh has reverted to the "regulated standing offer" at 27.09 cents per kWh. The Member recorded her findings as follows: 45 The Tribunal finds that: (a) The 2015 Act does not apply to the electricity usage and access charges under "existing" agreement that the occupiers of lots 11 and 20 entered into in 2013, before the commencement of the new Act, on 7 August 2015 (b) The repealed Act applies to existing agreement as if the new Act had not been enacted by reference to the saving provisions in the schedule of the new Act. (c) The electricity usage charges, as well as the access fees, are regulated under the Code that applies to the existing agreements (d) The Code is a reference to the "regulated standing offer" that Origin provides to the operator (e) In a sense, the respondent, indulged the 208 lots by charging each a lesser amount per kilowatt hour than was the standing charge up to a certain time between 2015 and 2017, allegedly because of a "deal" brokered by Mr Hearne on behalf of the respondent with its supplier, Origin (f) The respondent operator has now reverted to its entitlement to charge per kilowatt hour as set out in clause 6 of the existing agreements, or alternatively, relies upon the provisions of section 77 (3) as they apply to new agreements entered into after the commencement of the new Act [i.e. after 7 August 2015]. 46 Having made that determination, the Tribunal makes a finding that the respondent's charges for the kilowatt hour usage, albeit an uplift of over 80% from the former per kilowatt hour charges, accord with the provisions of the Code then prevailing for the existing agreements entered into prior to the commencement of the new Act on 7 August 2015. The usage charges, as calculated, referable to the Code, also apply. 47 In contrast, for any agreements entered into after the commencement of the new Act, Section 77 (3) prevails. The operator may make an election between two options: the latter option is a reference to the regulated offer for which there was no issue that the charges for usage are 27.09 cents per kilowatt hour. As well, a daily supply/access charge of 82.89 cents reduced by the "discounting" factor of around 30% takes into account the "reduced" amperage of 32 amps referable to the "usual" amperage of 60 amps.
2. On the basis of those findings, the Member dismissed the application.

The Appeal

1. The appeal may be brought as of right on a question of law or, with the leave of the Appeal Panel, on other grounds. As this appeal is brought from a decision of the Consumer and Commercial Division of the Tribunal, by virtue of cl 12(1) of Sch 4 to the NCAT Act leave to appeal may only be granted under s 80(2)(b) if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
2. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). As explained in Collins v Urban [2014] NSWCATAP 17 at [84], ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; 3. an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
3. The Notice of Appeal filed on 11 December 2017 identified a number of grounds of appeal, including grounds related to the conduct of the hearing, and sought leave to appeal on the basis that the decision was not fair and equitable, was against the weight of evidence, and there is significant new evidence. At the appeal directions hearing on 11 January 2018 the appellants were given leave to file and serve an amended Notice of Appeal, it being noted that one of the issues to be determined is the proper construction of s 77 of the new Act and what amount can be charged for electricity supplied to residents.
4. The appellants filed an Amended Notice of Appeal on 18 January 2018 as directed, in which they stated that the orders sought are: 1. That the operator has been charging electricity usage at the standing offer price rather than in accordance with s77(3) which requires it to charge no more than the amount charged by the electricity provider; 2. That the operator pay the relevant overpaid amount in accordance with s 85 and s 175(1)(d); and 3. An order under s 157(1)(b) that the operator comply with its obligations under s77(3) for all future electricity bills.
5. A four page submission was attached to the amended Notice of Appeal. That submission states that there were general errors in the first instance decision which do not impact on the decision, and that no weight should be given to the decision in Reckless which has been appealed, until the decision of the Appeal Panel in that matter has been determined. The submission identifies a number of matters in respect of which it is said the Member erred.
6. The appellants are not legally represented, and the Appeal Penal must determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12]. The appellants contend that the Member erred in finding that the new Act does not apply to their existing agreements given the savings provisions, and in her finding that the electricity usage charges and access fees are regulated under "the Code". An error in the interpretation and application of the savings and transitional provisions in Sch 2 to the new Act, ss 6 and s77(3) of the new Act, and the Residential (Land Lease) Communities Regulation 2015 (the Regulation) would, if found, be errors of law, and leave to appeal would not be required: see Prendergast at [13].
7. The appellants confirmed at the appeal hearing that the Amended Notice of Appeal is in substitution for the original Notice of Appeal, and none of the matters identified in that original Notice of Appeal are relied upon.
8. The operator's Reply to Appeal filed on 29 January 2018 addressed the matters identified in the appellants' original Notice of Appeal, contending that all appeared to be grounds other than a question of law. To the extent that the grounds of appeal raised questions of law, the Reply to Appeal appears to contend that the Member's interpretation of the applicable legislation was correct, and that the term in the site agreements continues to apply to electricity charges.
9. The operator provided further written submissions on 16 February 2018 on the interpretation of s 77(3) of the new Act.
10. The directions made at the call over on 11 January 2018 included a direction that both parties provide all the evidence provided to the Tribunal at first instance on which they intended to rely, and a sound recording (with typed copy of the relevant parts) if what happened at the hearing was being relied upon. Neither party provided the evidence below, or a sound recording or transcript.
11. The appellants submitted in their amended Notice of Appeal that no weight should be given to the decision in Reckless v Silva Portfolios Pty Ltd t/as Ballina Waterfront Village and Tourist Park [2017] NSWCATCD 57 as it was subject to appeal. At the time of the appeal hearing, the appeal from that decision had been heard by another Appeal Panel and the decision reserved. After hearing the parties' submissions in this appeal, the Appeal Panel reserved its decision, pending publication of the decision on appeal in Reckless. That decision was published on 3 April 2018: Reckless v Silva Portfolios Pty Ltd t/as Ballina Waterfront Village and Tourist Park [2018] NSWCATAP 80 (Reckless).
12. On 5 April 2018 the Appeal Panel invited the parties to make written submissions on the application of the Reckless decision. The appellants provided written submissions on 12 April 2018, and the respondent provided submissions on 10 May 2018.
13. The appellants submit that Reckless further confirms that the Member erred in applying the decision at first instance. The respondent submits that this appeal should be adjourned until the remitted proceedings in Reckless have been heard and determined. Both parties included in their submissions comments on how the electricity charges should be calculated.

Relevant legislation

1. The relevant provisions of the new Act are: 6 Application of Act to site agreements (1) This Act applies to all site agreements, whether existing immediately before or coming into existence after the commencement of this section, unless a provision of or under this Act provides otherwise. (2) Where this Act applies to a site agreement, it so applies despite the terms of the agreement or any other contract, agreement or arrangement, whether made before or after the commencement of this section. (3) This Act applies to a site agreement until it is terminated in accordance with this Act. … 77 Utility charges payable to operator by home owner (1) This section applies if, under a site agreement, the home owner is required to pay utility charges to the operator for the use by the home owner of a utility at the residential site. (2) The home owner cannot be required to pay for the use unless: (a) the use is separately measured or metered, and (b) the operator gives the home owner an itemised account and allows at least 21 days for the payment to be made. (3) The operator must not charge the home owner an amount for the use of a utility that is more than the amount charged by the utility service provider or regulated offer retailer who is providing the service for the quantity of the service supplied to, or used at, the residential site. Maximum penalty: 20 penalty units. (4) The regulations may: (a) provide for a maximum utility charge payable by home owners to the operator, and (b) create an offence for an operator to request or receive more than that maximum charge (if any). (5) The regulations may provide that a service availability charge for electricity payable by home owners to the operator of a community is to be discounted in accordance with the regulations where less than 60 amps are being supplied.
2. The Sch 2 Savings and transitional provisions include: 3 General savings Subject to this Act, each person, thing and circumstance appointed or created under the repealed Act or existing or continuing under that Act immediately before the commencement of the relevant provisions of this Act continues to have the same status, operation and effect as it would have had if this Act had not been enacted. … 5 Existing agreements (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. … 15 Fees and charges (1) Any fees and charges which were validly paid or received under the repealed Act are not affected by this Act. (2) Any new fee or charge permitted by this Act does not apply to any agreement entered into before the commencement of the relevant provisions of this Act. (3) Fees for late payment of utility charges are not payable for utilities unpaid at the commencement of the relevant provisions of this Act.
3. The repealed Act included the following provision: 37 Resident may agree to pay certain electricity charges (1) The park owner and resident under a residential tenancy agreement may agree that it is a term of the agreement that the resident will pay electricity charges (including availability charges, but not including installation costs) in connection with the residential premises, if: (a) the residential premises are individually metered, in compliance with the relevant code, and (b) any charges for the supply or resupply of electricity to the resident are calculated in accordance with the relevant code, and (c) the resident is provided with a receipt for any amount paid to the park owner for electricity consumption or availability, and that receipt is separate from any rent receipt provided to the resident or is identified separately on the rent receipt, and (d) the resident is issued with accounts that comply with this section, and with any relevant provisions of the relevant code that are not inconsistent with this section. (2) However, a resident who is required to pay the park owner an amount for electricity consumption or availability under such a term is not required to pay an amount that is greater than either: (a) the amount calculated in accordance with the relevant code, having regard to the resident's electricity consumption, or (a1) the maximum amount that a person who consumed the same amount of gas or electricity would have to pay if the person were in other residential premises (not in a residential park) in the same locality, or (b) any maximum amount prescribed by the regulations. (3) Any account issued to a resident in relation to electricity charges must contain details of the following: (a) the name of the resident, (b) the date of the account, (c) the date of the second meter reading in respect of which the account is issued, (d) the second meter reading in respect of which the account is issued, (e) the previous meter reading, (f) the number of days in the meter reading period, (g) the method by which the charge for electricity was calculated (showing total electricity consumption and appropriate rates), (h) the total amount payable, (i) any other matter required by the relevant code. (4) It is a term of every residential tenancy agreement that the park owner will pay all electricity charges in connection with the residential premises other than those that the resident agrees to pay, and is required to pay, under this section. (5) A resident who is required to pay any amount under this section is entitled to inspect any records of the park owner that relate to the payment of electricity charges by the resident. (6) In this section, the relevant code means: (a) in relation to gas, the code prescribed by the regulations for the purposes of this paragraph with respect to gas, and (b) in relation to electricity, the code prescribed by the regulations for the purposes of this paragraph with respect to electricity.

Appellants' submissions

1. The appellants submit that: 1. in reading the general savings provision in cl 3 of Sch 2, the words "subject to this Act" clarify that all things under the repealed Act remain valid unless the new Act provides differently; 2. cl 5 must be read in conjunction with s 6 of the new Act, and the effect of s 6(2) is that where there is a conflict between an existing agreement and the Act, the Act prevails, so that the term of the agreement is overridden by s 77(3) of the Act; 3. cl 15 of Sch 2 refers only to payments paid or received under the repealed Act, and does not apply to future payments or payments under the new Act; 4. the "Code" is the "Customer Service Standards for the Supply of Electricity to Permanent Residents of Residential Parks" published by NSW Fair Trading, which is the Code prescribed by the Residential Parks Regulation 2006. That Code is no longer relevant to the calculation of electricity charges and has been withdrawn from circulation by Fair Trading; 5. s77(3) limits the amount the operator can charge to the amount the operator is being charged by its utility service provider. The words are precise and clear and do not provide a choice about how to calculate charges for home owners, and the word "or" is included only to clarify that all utility providers are included, not just regulated offer retailers.
2. The appellants rely on extrinsic material to support their interpretation, being cl 13 of the Regulation; s99A of the Manufactured Homes (Residential Parks) Act 2003 (Qld), the statement by the Director-General of the Department of Housing and Public Works as to the policy intent of s99A, and the decision in Emmetlow Pty Ltd t/as Colonial Village v Pomroy [2015] QCATA 131.
3. In submissions after the hearing the appellants submit that the Appeal Panel decision in Reckless applies to their case, and the reasoning in that decision should be applied in this appeal.

Respondent's submissions

1. The respondent submits that: 1. At the time the new Act was drafted, which was before retail price regulation was removed from the electricity market in NSW from 1 July 2014, the legislature intended for electricity to be charged in land lease communities at the regulated offer retailer's standing offer price. Before 1 July 2014 the standing offer price of the local area retailer was the regulated offer as determined by the Independent Pricing and Regulatory Tribunal. Since deregulation, the local area retailer, which is the entity that is obliged to offer to supply energy in their associated distribution supply districts in accordance with s 83 of the Electricity Supply Act 1995, must still publish a standing offer, and in the absence of a standing offer price the local area retailer's price is to be charged; 2. That interpretation is supported by the NSW Fair Trading "Land lease community utilities" and "Usage and other charges" Fact Sheets; 3. by use of the word "or" in s 77(3), the operator can select one of the two methods specified, that is the utility service provider or the regulated offer retailer; 4. The appellants have suggested that the operator should be charging residents what it is being charged however they have not outlined how the operator would practically achieve that, and s77 does not require it; 5. It is not possible to know what the cost of supply to an embedded network (as the network providing electricity to the appellants is described) is, because: 1. There is a difference between the parent and child metering infrastructure such that it is not possible to determine the relevant time of use tariff, that is peak, off peak, shoulder and demand charges, for the electricity that is being consumed on any site at any point in time, and it is the time of use that predominantly determines the cost of the supply paid by the operator; 2. There are two different parent meters feeding the embedded network and it is not know which parent meter supplies electricity to each child meter and then at what cost; 3. A significant portion of the charges on the parent meter large market contracts are a function of peak demand during the invoice period and it is not possible to determine which sites are contributing to the peak demand and therefore to this element of cost; 1. An averaging methodology would not accord with the legislation and would advantage some residents while disadvantaging others.
2. In submissions after the hearing the respondent submits that this matter should be adjourned until after the remitted proceedings in Reckless have been considered in the Consumer and Commercial Division. In the alternative, applying s 77(3), the amount charged by the operator must be correlated to the amount of electricity consumed and the cost of that consumption. The respondent does not dispute that s 77(3) applies, the issue is the interpretation and application of the legislation.

Consideration

1. The Appeal Panel decision in Reckless concerned the application of the new Act to determination of charges for electricity consumption by a resident whose entitlement to occupy an identified site in the residential park was subject to a site agreement entered into under the repealed Act. Clause 6 of the site agreement in Reckless was in similar terms to the site agreement applicable to the appellants in these proceedings. As is the case in this appeal, in Reckless the residential site had its own electricity meter, which, unlike the meter for supply to the park operator, was not a "smart" meter; the operator's "smart" meter was charged at differential rates at different times of the day, with peak, shoulder, and off-peak periods.
2. One of the issues determined by the Appeal Panel in Reckless was whether, and if so, how, s77 of the new Act applied. The Appeal Panel applied s 6(2) of the new Act, finding that the new Act applies to a pre-new Act site agreement; and that as a consequence s 77 applies. In considering how s77(3) is to be applied, the Appeal Panel discussed the change in regulation of the electricity market from 1 July 2014, noting that until 30 June 2014 there had been two retailers nominated as the "regulated offer retailer" for customers in NSW; and while the concept of "regulated offer retailer" in relation to electricity was abolished on 1 July 2014, the expression is still in the new Act. The Appeal Panel concluded: 58. Despite the inelegant drafting of s 77(3), there is no ambiguity or lack of clarity in the language used. The 'utility service provider' still exists. It can readily be identified. There is no warrant for ignoring that entity and searching instead for a notional alternative entity that might have done what the actual entity in fact does, and then working out what that notional entity might have charged for that hypothetical service. The position is simply this - the Park Operator cannot charge Mrs Reckless for her consumption of electricity more than it is being charged by Origin Energy for the amount Mrs Reckless has consumed.
3. The Appeal Panel rejected (at [56]) an argument that it should consider the rate charged by a notional retailer, that is the retailer who would be providing a service, and held that s77(3) is to be read by reference to the actual "utility service provider", which does exist.
4. We agree with that approach to the language used in s77(3). In applying that approach, we would reject the operator's submission that s77(3) should be read so as to treat the park operator as the "utility service provider". Under s 77 (3) "the operator must not charge the home owner for an amount for the use of a utility that is more than the amount charged by the utility service provider or regulated offer retailer who is providing the service for the quantity of the service supplied to, or used for, the residual site". "Operator" is defined in s 4(a) as "the person who manages, controls, or otherwise operates the community…" "Utility" is defined in s 4 as including the service of "electricity". Under s 77 (3) the "operator" cannot be both an "operator" and a "utility service provider" , because it is not the "operator" who is providing electricity to the site, it is the "utility service provider" who provides electricity to the "operator" in respect of the residential site and the residents then access the electricity. If the "operator" was the "utility service provider" s 77 (3) would be devoid of meaning, because it would be the "operator" who determine the charges, not the "utility service provider", and the amount charged could never be excessive within the meaning of s 77 (3).
5. As was the case in this appeal, the operator in Reckless relied on the Fact Sheets published by NSW Fair Trading. That proposition was rejected in Reckless, the Appeal Panel noting (at [63]) that in relation to electricity usage charges, the commentary in the Fact Sheets diverges from the terms of s77(3). We agree with the Appeal Panel in Reckless that the focus must be on the terms of the legislation, properly interpreted, and not on departmental documents such as the Fact Sheets. In respect of principles of statutory interpretation "…legislation must be construed by reference to what Parliament has said through its enactment, as distinct from what others, including ministers, may wish or think Parliament intended" (Harrison v Melhem [2008] NSWCA 67; (2008) 72 NSWLR 380 at [159]) and a departmental Fact Sheet is not an extrinsic material that can be properly considered as providing assistance in the interpretation of s 77.
6. The Appeal Panel in Reckless also rejected a submission based on clauses 3 and 5 of Sch 2 to the new Act, holding (at [72]) that the existence of a term in a site agreement entered into before the commencement of the new Act was not a "circumstance" created under the repealed Act or a "circumstance" existing or continued under that Act, and thus the former method of charging for electricity usage would be protected by cll 3 and 5 of Sch 2 to the new Act. We agree with the Appeal Panel reasoning, that such an interpretation would give little room for the operation of the new Act in relation to pre-existing site agreements, despite the apparent intention to bring all site agreements whether old or new into one regulatory environment.
7. We are of the view that the reasoning in Reckless is applicable to the issues in this appeal, and we respectfully agree with and adopt that reasoning as to the application, and interpretation, of s 77(3) of the new Act. There is no basis on which we consider it would be appropriate to do other than apply that reasoning to the analogous circumstances in this matter. Accordingly, in finding that the new Act does not apply to the electricity usage and access charges under the site agreements pursuant to which the present appellants occupy their sites, and in applying the charging regime that applied under the former regulated standing offer, or "Code", then prevailing for existing agreements entered into before the commencement of the new Act, we find that the Member erred in law. The appeal should be allowed.

Orders

1. As noted above the appellants sought orders under s 85 and s 157(1)(d) of the Residential (Land Lease) Communities Act 2013 for refund of amounts overpaid in electricity usage charges and access fees. While the parties have provided in their appeal documents, including in the supplementary written submissions after the hearing, material that appears to be relevant to clarifying the amounts payable and amounts charged, it is not on our reading sufficiently comprehensive so as to enable the Appeal Panel to exercise the power conferred by s 81(1)(d) of the NCAT Act to determine the amount of electricity charges payable in accordance with s 77(3) of the new Act. The preferable course is to remit the matter to the Consumer and Commercial Division. In doing so we acknowledge, as did the Appeal Panel in Reckless, that given the manner in which the operator is charged for electricity it will not be a simple exercise to calculate how much it has been charged for the amount of electricity used by the appellants. While we are satisfied that the legal principles to be applied have been clarified and established in Reckless, on the material available to us it is not clear whether there may be factual differences between the matters that might lead to different outcomes on a calculation of electricity charges applying s77(3) of the new Act. There is therefore no reason to postpone the reconsideration of this application in the Consumer and Commercial Division, as submitted by the operator.
2. There are other matters which will need to be considered and clarified in the remitted proceedings. It is not clear in the first instance decision, or in the material provided on appeal, what period of time is covered by the application. We note that the Member granted leave under s 41 of the NCAT Act to extend the time to make the application to cover the period from 1 January 2016; however in their supplementary written submissions after the appeal hearing the appellants request access to the operator's electricity bills to March 2018, which is well after the date the application was lodged. The appellants further seek an order requiring the operator to reduce the per kilowatt price; an order that the operator is required to provide 30 days notice of future increases; an order requiring the operator to disclose the highest amount it actually pays; and an order applying the decision to all 208 sites in the embedded network. We note in relation to the latter that in her written reasons at [14] the Member explained why each resident has to bring their own application. In relation to the other matters, on the limited basis on which the appeal proceeded, it appears to us that all matters relevant to the calculation of the electricity charges will be considered in the remitted proceedings.
3. The Appeal Panel orders: 1. The appeal is allowed. 2. The proceedings are remitted to the Consumer and Commercial Division of the Tribunal to determine the amount of electricity charges, if any, to be refunded to the appellants. 3. The parties may provide new evidence in the remitted proceedings. ​

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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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 May 2018