Bennett v Gennacker Pty Ltd

Judgment

1. BEAZLEY P: I have had the opportunity to read in draft the reasons of Basten JA. I agree with his Honour's reasons and with the orders he proposes.
2. BASTEN JA: On 31 March 2008 the appellants, Donald and Laureen Bennett, entered into an agreement with the respondent, Gennacker Pty Ltd, pursuant to which they were entitled to occupy a holiday park site in Chinderah on the north coast of New South Wales for a period of one month. The occupation fee was fixed at $167.45 per week. There was provision in the agreement for occupation to continue after the expiration of the fixed term.
3. On 27 June 2012 Gennacker filed an application in the Consumer, Trader and Tenancy Tribunal seeking an order terminating the Bennetts' occupation agreement.
4. In a decision of the General Division of the Tribunal, delivered on 4 December 2012, the Tribunal member stated that "[t]here is a jurisdictional issue in this case." [1] The dispute was said to be as to whether the agreement was governed by the Holiday Parks (Long-Term Casual Occupation) Act 2002 (NSW) ("the Holiday Parks Act"), or the Residential Parks Act 1998 (NSW). That was not strictly accurate: it was common ground that, unless the occupation agreement was one to which the Holiday Parks Act applied, the termination notice, which relied on a right to terminate without grounds, was ineffective to terminate the occupation. Accordingly, the issue was simply whether the occupation agreement was one to which the Holiday Parks Act applied.
5. The Tribunal identified three bases upon which it held that the occupation agreement was not one to which the Holiday Parks Act applied. Accordingly, Gennacker was not entitled to the orders which it sought.
6. There was, in 2012, a right of appeal on any question with respect to a matter of law to the District Court. For reasons which were not satisfactorily explained, Gennacker did not seek to exercise that right, but rather sought judicial review in the supervisory jurisdiction of this Court, pursuant to s 69 of the Supreme Court Act 1970 (NSW). There was, however, a privative clause in the Consumer Trader and Tenancy Tribunal Act 2001 (NSW) ("the CTTT Act") which precluded the Supreme Court from making orders in the nature of certiorari (among other orders), with four exceptions relating to the jurisdiction of the Tribunal. That relied upon by Gennacker was that the Tribunal "gave an erroneous ruling as to its jurisdiction". [2]
7. Whether the Tribunal's decision was a ruling as to its jurisdiction was not addressed; its ruling was that Gennacker had sought to exercise a statutory power to terminate an agreement in circumstances where the power was not engaged. That circumstance required determination of certain facts and the application of legal principle to the facts as found. There was no suggestion that the Tribunal did not have power to determine the facts, nor that it did not have power to apply the law relied upon by Gennacker to those facts.
8. The judicial review proceedings were brought in the Common Law Division and were heard by Hidden J. The question as to whether there was a ruling as to the jurisdiction of the Tribunal was not raised, nor addressed. This was potentially problematic, because jurisdiction can depend upon issues of fact or law: there was no discussion as to whether the Supreme Court was entitled to make findings of fact in considering the application before it. There is at least an appearance in the judgment of reliance upon facts which were not found by the Tribunal.
9. A second problem with the failure to define carefully the issue as to jurisdiction said to have been wrongly decided was that the two bases relied on by the Tribunal and supported by the occupants on this appeal depended upon ambiguities in the statute which were simply not identified and therefore not resolved. [3] For this reason, some necessary findings of fact were not made.
10. The primary judge set aside the decision of the Tribunal and remitted the matter for further hearing. [4] Because the Tribunal had been abolished by the time judgment was delivered, the remitter was to the New South Wales Civil and Administrative Tribunal (NCAT), which has jurisdiction pursuant to transitional provisions under the Civil and Administrative Tribunal Act 2013 (NSW).

Statutory scheme

1. In order to understand the manner in which the application was dealt with before the Tribunal and the case upheld by the primary judge, it is necessary to outline the relevant statutory provisions.
2. There is little doubt that the contract between the parties constituted an "occupation agreement", which is defined to mean "any agreement under which a person grants to another person for value a right to occupy a site", whether the agreement is oral or in writing or partly oral and partly in writing. [5] The term "site" is defined to mean "a site within a holiday park that is used … for the installation of a moveable dwelling for long-term casual occupation". [6] The phrase "long-term casual occupation" is not defined, but "long-term casual occupant" is, and means "an occupant under an occupation agreement to which this Act applies." [7] Further, s 6, dealing with circumstances where the Act does not apply, refers to a site used or intended to be used for holiday purposes "other than long-term casual occupation of the kind described in section 5(1)". [8] This reflects the heading of s 5, but adopts it as descriptive of the purposes identified in the section. (The heading to the section thus becomes part of the Act. [9] )
3. The application of the Act is identified in Pt 2, of which the primary provision, and provision critical in the present case, is s 5(1). That provision reads: 5 Act applies to long-term casual occupants (1) This Act applies to any occupation agreement in relation to a site: (a) entered into by an occupant who has a principal place of residence somewhere other than the site, and (b) under which the occupant installs the occupant's own moveable dwelling on the site and leaves it there all of the time that the occupation agreement continues in force, and (c) under which the occupant can occupy the site for no more than 180 days in any 12-month period (in a continuous or broken period), and (d) under which: (i) the occupant agrees, with the consent of the park owner, to be an occupant on a casual basis for at least 12 months, or (ii) the occupant has, with the consent of the park owner, been an occupant on a casual basis for at least 12 months.
4. The relevant terms of an occupation agreement are prescribed by Sch 1 of the Holiday Parks Act. Section 11 then provides: 11 What are the terms of a written occupation agreement? (1) Every occupation agreement that is wholly or partly in writing is taken to include the following standard terms: (a) every term set out in Schedule 1 (with the blank spaces filled in with appropriate details), and (b) every term prescribed by the regulations, whether or not the term appears in the written agreement. (2) An occupation agreement that is wholly or partly in writing may include additional terms only if: (a) they are consistent with this or any other Act, and (b) they are consistent with the standard terms of the agreement included in the agreement by subsection (1). … (4) A term (including an additional term) of an occupation agreement is void to any extent to which it is inconsistent with this or any other Act or any term included in the agreement by subsection (1). (5) An additional term is void if the Tribunal so orders, on application by an occupant or a park owner, on being satisfied that the additional term contravenes subsection (2).
5. The other two provisions with potential relevance are ss 18 and 19 which provide as follows: 18 Fixed term agreement may specify that it continues If an occupation agreement that creates an occupancy for a fixed term includes a provision for its continuation after the fixed term ends, that provision has effect. 19 Park owner or occupant may terminate agreement when fixed term ends If an occupation agreement creates an occupancy for a fixed term and the fixed term ends, the park owner or the occupant may terminate the occupation agreement in accordance with the terms of the agreement relating to termination.
6. Applications may be made to the Tribunal (now defined as NCAT, but previously defined to mean the CTTT) by a park owner or an occupant under an occupation agreement claiming that a breach of a term of the agreement has occurred. [10] The alleged breach in the present case was a failure to comply with a notice terminating the occupation agreement "by giving vacant possession of the site." The application sought an order "to vacate the premises to give effect to the notice of termination of the occupation agreement…". The powers of the Tribunal are identified in s 27 of the Holiday Parks Act: 27 What orders can the Tribunal make? (1) The Tribunal may, on application by a person under section 26, make one or more of the following orders: (a) an order that: … (ii) requires any action in performance of the agreement or to resolve the disagreement, … (c) an order that the park owner give the occupant the correct notice of termination of the occupation agreement, (d) an order that a party to the occupation agreement perform any work or take any other steps that the order specifies to remedy a breach of the agreement or to resolve the disagreement, (e) an order as to compensation, … (f) an order terminating the occupation agreement and an order for possession of the site.
7. Section 28 of the Holiday Parks Act states that "[a] person may recover possession of a site in accordance with this Act or an occupation agreement without the need to obtain an order of the Tribunal." How that was to be done, under the legislation as enacted, was not entirely clear. Furthermore, the available orders under s 27 (as enacted) did not include an order for possession. Paragraph 27(1)(f) was added by amendment in 2006. [11] Section 27 still contains no power to declare a term of the agreement void, although s 11(5) confers such a power by implication in relation to "additional terms".
8. The value of a Tribunal order for vacant possession is that it allows enforcement pursuant to s 30, which provides in part: 30 Enforcement of orders for possession (1) If an order for possession of a site is made by the Tribunal, then the President of the Tribunal, any other member of the Tribunal or a registrar of the Tribunal may: (a) on the application of the person in whose favour the order was made, and (b) if satisfied that the order for possession or a condition of suspension of the order has not been complied with, issue a warrant, in the approved form, authorising a sheriff's officer to enter a site and to give possession to the person in whose favour the order was made.
9. The application to the Tribunal also sought an order that work or services be done "as stated below" to the approximate value of $36 and (somewhat inconsistently) an order claiming $36. (The work or services were not identified.) This part of the application was not addressed in the course of the hearing before the Tribunal, nor in the Tribunal's decision. It need not be considered further. It should be inferred that the Tribunal may dismiss an application if not satisfied that the orders sought should be made.

The agreement

1. The Tribunal conducted a hearing in Murwillumbah on 26 October 2012. Each party was represented and Mr Bennett (who was the sole "occupant" named in the agreement) gave oral evidence and was cross-examined.
2. Both the appellants were named as defendants to the proceedings before the Tribunal, although whether both were parties to the occupation agreement was unclear. The written form of the agreement had four parts. First, there was a pro forma agreement containing the 44 standard terms contained in Sch 1 to the Holiday Parks Act, and further "additional terms", being clauses 45-65. The first six clauses, contained in Part 1 of the pro forma agreement, required details to be filled in. The only detail filled in on the form itself was the number of the site.
3. The second part, containing other details, was a single page headed "Part 1". That page identified the date of the agreement as 31 March 2008 and the term of the agreement as "one month beginning on the date the agreement is made on in Part 1." The page also identified the site more precisely, provided that two persons might ordinarily occupy the site at one time, identified the park owner (the respondent), identified "occupant" as Donald Bennett and "other occupants" as Laureen Bennett.
4. The third part comprised two further sheets, also annexures to the pro forma agreement, headed "Schedule 1" and "Schedule 2". Each identified the property containing the site as Homestead Holiday Park, the occupant as Donald Bennett, and contained details required by particular clauses in the pro forma agreement. The fourth part was a set of park rules and a disclosure document provided by the park owner, in accordance with the Holiday Parks Act.
5. In addition to specifying the fixed term referred to in cl 5 as one month, cl 6 of the agreement provided: "6. What happens when this agreement ends? When the time for this agreement ends (that is when the fixed term ends): (a) the occupant can stay on the site at the same occupation fee unless the park owner has given the occupant at least 30 days notice in writing of the increased occupation fee and otherwise under the same terms unless or until this agreement is ended in accordance with this agreement."
6. The additional details provided in the page headed "Schedule 1" included the occupation fee, which was identified as $167.45, payable weekly on Friday of each week. The same sheet contained the following detail in order to complete the additional term, being cl 45 in the pro forma agreement: "OCCUPATION 45.1 During the year, the occupant may not use the site for more than 180 nights 45.2 Occupant not to use site, except with the prior permission of the park owner, for any continuous period greater than 28 nights 45.3 If the site is occupied for a period greater than the number of nights specified in clause 45.1 above the occupant is to pay the occupation fee for each additional night Nil"

1. The notice relied on by the owner referred to cl 40 of the agreement. Schedule 1 of the Holiday Parks Act, which contains the standard terms taken to be included in every occupation agreement, includes, in cl 40, termination without reason, applicable, according to the heading, when a fixed term has been completed: 40 Notice of termination by park owner without any reason (but not for a fixed term agreement that has not finished) (1) The park owner and the occupant agree that the park owner may give notice of termination of this agreement without having to give any reason. (2) The park owner and the occupant agree that a notice of termination given under this clause must give at least 3 months' notice as to the day on which vacant possession of the site will be delivered up to the park owner. (3) This clause does not apply if the agreement creates an occupancy for a fixed term and the notice of termination specifies that it takes effect before that term finishes.

Tribunal decision

1. The Tribunal purported to make six orders. The only one which might properly be considered an order under the Holiday Parks Act was order 6, which dismissed the application for an order for the termination of the agreement. Most of the purported orders were "findings" and constituted steps in the reasoning to the conclusion that the application be dismissed.
2. One of the "orders" made by the Tribunal purported to declare that the agreement entered into by the parties in March 2008 "pursuant to" the Holiday Parks Act was void (order 4). The Tribunal had no express power to make such an order, nor should such a power be implied from the more limited terms of s 11(5). It was one thing to find that the agreement was not one to which the Holiday Parks Act applied; it was quite another to find that the agreement was void. The consequences of such an order were not explored, although one possible consequence may have been that the occupants had no right to remain. That order was properly set aside on any view.
3. The Tribunal identified three bases upon which the Tribunal held that the Holiday Parks Act did not apply, namely (referring to Mr and Mrs Bennett): [12] "(1) they do not have their principal place of residence somewhere other than the site; (2) they did not install their movable dwelling… on the site, but rather purchased a dwelling already on the site and (3) did not agree (with the consent of the park owner) to be an occupant on a casual basis for 12 months." A problem with (1) lay in the use of the present tense, without considering the date on which the condition was to be satisfied. The primary judge also failed to identify this issue, by paraphrasing, using the past tense to identify the finding which had been made. [13]

Issue on appeal

1. The primary judge rejected the second basis relied upon by the Tribunal; there is no appeal from that conclusion.
2. Whether the agreement between the parties was otherwise an occupation agreement to which the Holiday Parks Act applied was difficult to determine, in no small part due to the conceptual structure of the Act. The Act applies to agreements if four conditions are satisfied: three of the four conditions depend on the terms of the agreement. [14] However, the terms of an occupation agreement to which the Act applies must be in accordance with and include every term set out in Sch 1. Logically it must be necessary to look at the agreement without regard to whether or not it complies with s 11 and Sch 1 of the Act, in order to determine whether the Act applies to it.

(a) principal place of residence

1. The first criterion does not depend upon the terms of the agreement, namely that the occupant has a principal place of residence elsewhere. The Tribunal made a finding that the occupants "do not" have their principal place of residence elsewhere, expressed in the present tense so as to relate to the time of the decision.
2. The condition identified in s 5(1)(a) is whether the occupant "has" a principal place of residence elsewhere at the time the agreement is "entered into". The failure of the Tribunal to have noted the temporal element in this condition may be explained, at least in part, by the fact that the parties before the Tribunal did not identify it as an issue. Accordingly, there was an unresolved question of fact.
3. There was a further unresolved issue which arose from the evidence before the Tribunal. The agreement itself noted in cl 1 the "[d]ate of this agreement" as 31 March 2008. The Tribunal found that the parties "entered into" the written agreement "[i]n April 2008". [15] That finding was consistent with the position of the park owner, as outlined in the course of submissions before the Tribunal, that the agreement "would have been signed after 20 April". [16] The significance of the date on which the agreement was "entered into" was clearly overlooked.
4. Mr Bennett gave evidence that "our permanent place of residence for the last five years has been where we are now at the Homestead Caravan Park." [17] The unresolved evidential issue was this: as at the date they took up occupation (which appears to have been 31 March 2008) the Bennetts' principal place of residence may well have been elsewhere (namely their house in Brisbane), but after they moved in and their son and his family occupied the Brisbane house, Mr Bennett was stating that his principal place of residence was the moveable dwelling at the Park.
5. Because the point of construction was not addressed, it is not appropriate to reach a firm conclusion as to the meaning of s 5(1)(a). Suffice it to say that the condition contained in that provision requires the identification of a state of affairs at a particular point in time identified as the time when the agreement was "entered into". It is clearly open to the construction that the relevant time is when the agreement (if, as here, in writing and signed) was signed, and not the date on which the agreement came into effect, nor the date typed on the agreement.
6. Gennacker submitted that, even if the Tribunal did not identify the right question, it made findings as to all relevant facts; however, as has been explained, that is not so. If it were necessary for this issue to be resolved, it would be necessary to remit the matter to the Tribunal. On the other hand, as all conditions must be satisfied, if the Tribunal were not in error in its conclusion as to the third condition identified by it, then remitter would not be necessary.
7. This conclusion is sufficient to require that the appeal be upheld. Although the primary judge remitted the matter to the Tribunal for determination of Gennacker's application, he did so on the basis that the occupation agreement was one to which the Holiday Parks Act applied. Until the engagement of par (a) is determined, the Act cannot be said to apply.

(b) occupation on a casual basis for 12 months

1. On one view, the requirement in s 5(1)(a) may be seen to be complementary to the requirements in par (c) and (d). At least they may be taken as reflecting a coherent concept, the requirements being that the occupation is to be "casual" (not to exceed 180 days in any 12 month period), and must be "long-term" (for at least 12 months).
2. Paragraph (c) was satisfied by the terms of cl 45 of the agreement, which imposed a restriction on occupation of no more than 180 days in any 12-month period, except that the clause assumed that the occupant had a right to occupy the site for 12 months. Whether that was a necessary element of (c) depended on whether "can" means "is entitled to under the agreement" or "can if the park owner agrees". This ambiguity was not addressed, possibly because par (d)(i) raised a similar issue and, concededly, was not satisfied.
3. Paragraph (d) is also problematic. Because the agreement provided for a fixed term of one month, thereafter terminable by the park owner, by virtue of cll 6 and 40, on 90 days' notice without reason, it could not be said that the occupant had agreed, under the agreement, to be an occupant for at least 12 months. Gennacker conceded that par (d)(i) was not satisfied. (The purpose of the phrase "with the consent of the park owner" in this provision is unclear.)
4. Nevertheless, according to Gennacker, par (d)(ii) was satisfied because the occupant had, with the consent of Gennacker, occupied the site "on a casual basis for at least 12 months."
5. There are two issues raised by that submission. First, if the nature of the occupation were a factual matter, as it appears to be, it was not made good. Although the term "casual basis" is not defined, it would seem to reflect the site not being the occupant's principal place of residence and being a place which he could occupy for only 180 days in any 12 month period. Yet the Tribunal found that the Bennetts had "resided in the home at the site continuously since March 2008" and that they "occupied the house at the park as their principal place of residence." [18] Therefore, with or without the consent of the park owner, Mr Bennett had not been the occupant "on a casual basis" for at least 12 months, although it was true that he had been an occupant, on a continuous basis, for a significantly longer period.
6. Although the Tribunal set out in par 12 of its reasons the requirements of each of the paragraphs in s 5(1) of the Act, the third element which was said not to be satisfied was expressed in terms which reflected par (d)(i), not par (d)(ii). However, in this instance it was true that the findings of fact demonstrated that par (d)(ii) was not satisfied. Accordingly, on a factual basis, the decision of the Tribunal that par (d) was not satisfied was correct.
7. Secondly, an occupation agreement entered into after the commencement of the Holiday Parks Act, but one to which the Act did not initially apply, could not become so by reason of subsequent events. As a primary purpose of the Act is to regulate the terms of occupation agreements to which it applies, such an operation is implausible. The better view is that par (d)(ii) was directed to agreements entered into before the commencement of the Act, to which the Act applied on its commencement, pursuant to s 5(2). On that construction, par (d)(ii) was not engaged with respect to this agreement.

Conclusion

1. It follows that the Holiday Parks Act did not apply to this occupation agreement. The Tribunal came to the correct conclusion and the judgment below should be set aside.
2. In these circumstances, it is not necessary to address the challenge based on the failure of the primary judge to give reasons for concluding that the Tribunal was in error. There was, however, substance to the submission that the careful setting out of the competing submissions of each party, followed by a bald statement accepting the submissions for Gennacker, did not provide reasons for the conclusion. For present purposes it is sufficient to conclude that the submissions should not have been accepted, for the reasons explained above.
3. The Court should make the following orders: (1) Allow the appeal and set aside the judgment and orders of Hidden J of 11 June 2015. (2) In place thereof, order that: (a) order (4) made by the Consumer, Trader and Tenancy Tribunal on 4 December 2012 (declaring the agreement between the parties "void") be set aside; (b) otherwise dismiss the summons in the Common Law Division. (3) Order that the respondent pay the appellant's costs in this Court.
4. WARD JA: I agree with Basten JA.

Endnotes

1. Reasons, par 2.
2. CTTT Act, s 65(2)(a).
3. See below at [36] and [40].
4. Gennacker Pty Ltd v Bennett [2015] NSWSC 726, judgment delivered on 11 June 2015.
5. Holiday Parks Act, s 3(1), occupation agreement.
6. Holiday Parks Act, s 3(1), site.
7. Holiday Parks Act s 3(1), long-term casual occupant.
8. Holiday Parks Act, s 6(2)(a).
9. Interpretation Act 1987 (NSW), s 35(4)(a).
10. Holiday Parks Act, s 26(1)(a).
11. Statute Law (Miscellaneous Provisions) Act 2006 (NSW), Sch 1, item 1.15.
12. Tribunal, Reasons for Decision, par 13.
13. Gennacker at [19].
14. Holiday Parks Act, s 5(1)(b), (c) and (d).
15. Tribunal decision, par 11(3).
16. Tribunal tcpt, 26/10/2012, p 29(23).
17. Tribunal tcpt, p 5(12).
18. Tribunal reasons, par 11(5) and (9).

Amendments 03 May 2016 - Hearing date correction - coversheet 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: 03 May 2016