[1996] FCA 1483
R v Burdett (1820) 106 ER 873
Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177
[1982] FCA 336
Weissensteiner v The Queen (1993) 178 CLR 217
[1993] HCA 65
Westpac Banking Corporation v Jamieson & Ors (2016) 1 Qd R 495
[2015] QCA 50
Yorke v Lucas (1985) 158 CLR 661
Judgment (23 paragraphs)
[1]
R v Burdett (1820) 106 ER 873
Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177; [1982] FCA 336
Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65
Westpac Banking Corporation v Jamieson & Ors (2016) 1 Qd R 495; [2015] QCA 50
Yorke v Lucas (1985) 158 CLR 661; [1985] HCA 65
Texts Cited: Moore H, Australian Concise Oxford Dictionary (4th ed, 2003)
The Macquarie Dictionary (3rd ed, 1997))
Wigmore J, A Treatise on the Anglo-American System of Evidence (3rd ed, 1940) vol 2, s 285, at 162
Category: Principal judgment
Parties: Commissioner for Fair Trading (Plaintiff)
Jonval Builders Pty Limited ACN 005177793 (First Defendant)
Hacienda Caravan Park Pty Limited (Second Defendant)
John Allan Willmott (Third Defendant)
Representation: Counsel:
R Francois / K Jones (Plaintiff)
A J H Morris QC / L A Jurth (Defendants)
HIS HONOUR: By Further Amended Statement of Claim, filed 19 April 2018, the Commissioner for Fair Trading (NSW) (hereinafter "the Commissioner") seeks orders against Jonval Builders Pty Limited (hereinafter "Jonval"), Hacienda Caravan Park Pty Limited (hereinafter "Hacienda") and John Allan Willmott. Essentially, the plaintiff alleges that the defendants, where relevant, have each engaged in misleading or deceptive conduct and unconscionable conduct.
The plaintiff seeks declarations that the defendants' conduct was unlawful and contravened the Fair Trading Act 1987 (NSW) (hereinafter "FTA") and the Australian Consumer Law (NSW) (hereinafter "ACL"). The Commissioner is also seeking restraining orders enjoining the defendants from engaging in further conduct of that kind; orders that the defendants jointly and severally compensate and/or pay damages to the relevant consumers for losses that have been suffered; and the Commissioner seeks costs.
In short, the Commissioner alleges that the defendants conducted a caravan park (hereinafter referred to as "Hacienda Park") and sold what were described as "permanent" holdings, containing a caravan, registrable or un-registrable mobile dwellings ("RMD" or "UMD" respectively) to the "consumers" (more accurately the purchasers/occupiers), who are identified (and will be identified later in these reasons), in circumstances where it was unlawful to provide permanent residences on those sites. The caravans or mobile dwelling sites were called, during the course of the proceedings, Marina Villa Sites and the mobile dwellings have been referred to as the Marina Villas or Villas.
For the provision of those permanent sites, Jonval marketed and sold the Villas and Hacienda charged the consumers a weekly park fee as well as a payment of a lump sum for the use of the site, the latter being a "key-money" premium for the Villa on the site, some more complete explanation will be provided later in these reasons.
The Marina Villa Sites were situated on the water's edge and, as a consequence, were marketed at a more expensive rate than a site that was not so situated. It is alleged that the defendants misled the consumers in representing to them that the sites were "permanent" and otherwise acted unconscionably in the marketing and sale of the Marina Villas and Marina Villa Sites. I will discuss the detailed allegations later in these reasons.
[4]
Legislation
As earlier stated, orders are sought, declaratory and otherwise, pursuant to the terms of ss 42 and 43 of the FTA. Further, orders are sought under ss 18 and 21 of the ACL. Orders are also sought under ss 65 and 72 of the FTA and ss 232, 237 and 243(d) of the ACL.
The multiplicity of legislative provisions arises because the FTA was amended, with effect on 1 January 2011, and the conduct in question is said to have occurred before and after 1 January 2011. The effect of the amendments was, essentially, to vary the name and number of the provisions, but the substance of the provisions remained the same, or substantially the same. Nevertheless, as a matter of abundant caution, it is appropriate to set out those provisions:
[5]
Fair Trading Act (pre-2011)
"42 Misleading or deceptive conduct
(1) A person shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
(2) Nothing in this Part shall be taken as limiting by implication the generality of subsection (1).
43 Unconscionable conduct
(1) A supplier shall not, in trade or commerce, in connection with the supply or possible supply of goods or services to a consumer, engage in conduct that is, in all the circumstances, unconscionable.
(2) Without limiting the matters to which the Supreme Court may have regard for the purpose of determining whether a supplier has contravened subsection (1) in connection with the supply or possible supply of goods or services, the Court may have regard to:
(a) the relative strengths of the bargaining positions of the supplier and the consumer,
(b) whether, as a result of conduct engaged in by the supplier, the consumer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the supplier,
(c) whether the consumer was able to understand any documents relating to the supply or possible supply of the goods or services,
(d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the consumer (or a person acting on behalf of the consumer) by the supplier or a person acting on behalf of the supplier in relation to the supply or possible supply of the goods or services, and
(e) the amount for which, and the circumstances under which, the consumer could have acquired identical or equivalent goods or services from a person other than the supplier.
(3) A supplier shall not be taken for the purposes of this section to engage in unconscionable conduct in connection with the supply or possible supply of goods or services to a consumer only because the supplier institutes legal proceedings in relation to that supply or possible supply or refers a dispute or claim in relation to that supply or possible supply to arbitration.
(4) For the purpose of determining whether a supplier has contravened subsection (1) in connection with the supply or possible supply of goods or services to a consumer:
(a) the Supreme Court shall not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention, and
(b) the Court may have regard to conduct engaged in, or circumstances existing, before the commencement of this Act.
(5) (Repealed)
(6) A reference in this section to the supply or possible supply of goods includes a reference to the supply or possible supply of goods for the purpose of re-supply or for the purpose of using them up or transforming them in trade or commerce.
…
65 Injunctions
(1) Where, on the application of the Minister, the Director-General or any other person, the Supreme Court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute:
(a) a contravention of a provision of Part 3, 4, 5, 5A, 5B, 5C, 5D, 5E, 5F, 5G or 8,
(b) attempting to contravene such a provision,
(c) aiding, abetting, counselling or procuring a person to contravene such a provision,
(d) inducing, or attempting to induce, whether by threats or promises or otherwise, a person to contravene such a provision,
(e) being in a way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision, or
(f) conspiring with others to contravene such a provision,
the Court may grant an injunction in such terms as the Court determines to be appropriate.
(2) Without prejudice to the generality of subsection (1), an injunction granted under that subsection may be, or include, an injunction restraining a person from carrying on a business of supplying goods or services (whether or not as part of, or incidental to, the carrying on of another business):
(a) for a specified period, or
(b) except on specified terms and conditions.
(3) Where an application for an injunction under subsection (1) has been made, the Supreme Court may, if the Court determines it to be appropriate, grant an injunction by consent of all the parties to the proceedings, whether or not the Court is satisfied that a person has engaged, or is proposing to engage, in conduct of a kind specified in subsection (1).
(4) Where in the opinion of the Supreme Court it is desirable to do so, the Court may grant an injunction pending determination of an application under subsection (1).
(5) The Supreme Court may rescind or vary an injunction granted under subsection (1), (3) or (4).
(6) The power of the Supreme Court to grant an injunction restraining a person from engaging in conduct may be exercised:
(a) whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind,
(b) whether or not the person has previously engaged in conduct of that kind, and
(c) whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person engages in conduct of that kind.
(7) The power of the Supreme Court to grant an injunction requiring a person to do an act or thing may be exercised:
(a) whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing,
(b) whether or not the person has previously refused or failed to do that act or thing, and
(c) whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person refuses or fails to do that act or thing.
(8) Where the Minister or the Director-General makes an application to the Supreme Court for the grant of an injunction under this section, the Court shall not require the applicant or any other person, as a condition of granting an interim injunction, to give any undertaking as to damages or costs.
(9) If:
(a) in a case to which subsection (8) does not apply, the Court would, but for this subsection, require a person to give an undertaking as to damages or costs, and
(b) the Minister gives the undertaking,
the Court shall accept the undertaking by the Minister and shall not require a further undertaking from any other person.
(10) If the Court grants an injunction in relation to goods the supply of which would constitute an offence under Part 3, the Court may make such order as it thinks fit with respect to disposal of the goods.
…
72 Other orders
(1A) A reference in this section to loss or damage does not, if the loss or damage arises from a contravention of Part 5 (section 43 excepted), include a reference to:
(a) the death of a person, or
(b) personal injury to a person (including any pre-natal injury, any impairment of the person's physical or mental condition and any disease).
(1) Without limiting the generality of section 65, if, in a proceeding instituted under this Part, or for an offence against Part 3, 4, 5, 5B, 5C, 5D, 5F or 8, the Supreme Court finds that a person has sustained, or is likely to sustain, loss or damage by conduct of another person that contravened a provision of Part 3, 4, 5, 5B, 5C, 5D, 5E, 5F, 5G or 8, the Court may, whether or not it grants an injunction under section 65 or makes an order under section 67 or 68, make such order or orders as it thinks appropriate against the person who engaged in the conduct or a person who was involved in the contravention (including all or any of the orders specified in subsection (5)) if the Court considers that the order or orders concerned will compensate the first-mentioned person wholly or in part for the loss or damage or will prevent or reduce the loss or damage.
(2) Without limiting the generality of section 65, the Supreme Court may, on the application of a person who has sustained, or is likely to sustain, loss or damage by conduct of another person that contravened a provision of Part 3, 4, 5, 5B, 5C, 5D, 5E, 5F, 5G or 8 or on the application of the Director-General in accordance with subsection (4) on behalf of such a person or 2 or more such persons, make such order or orders as the Court thinks appropriate against the person who engaged in the conduct or a person who was involved in the contravention (including all or any of the orders specified in subsection (5)) if the Court considers that the order or orders concerned will compensate the person who made the application, or the person or any of the persons on whose behalf the application was made, wholly or in part for the loss or damage or will prevent or reduce the loss or damage.
(3) An application may be made under subsection (2) in relation to a contravention of Part 3, 4, 5, 5B, 5C, 5D, 5E, 5F, 5G or 8 even if a proceeding has not been instituted under another provision of this Part in relation to the contravention.
(4) Where, in a proceeding instituted for an offence against Part 3, 4, 5, 5B, 5C, 5D, 5F or 8 or instituted by the Minister or the Director-General under section 65, a person is found to have engaged in conduct in contravention of a provision of Part 3, 4, 5, 5B, 5C, 5D, 5E, 5F, 5G or 8, the Director-General may make an application under subsection (2) on behalf of one or more persons identified in the application who have suffered, or are likely to suffer, loss or damage by the conduct, but the Director-General shall not make such an application except with the consent in writing given before the application is made by the person, or by each of the persons, on whose behalf the application is made.
(5) The orders referred to in subsections (1) and (2) are:
(a) an order declaring the whole or any part of a contract made between the person who suffered, or is likely to suffer, the loss or damage and the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct, or of a collateral arrangement relating to such a contract, to be void and, if the Supreme Court thinks fit, to have been void from its beginning or at all times on and after such date before the date on which the order is made as is specified in the order,
(b) an order varying such a contract or arrangement in such manner as is specified in the order and, if the Court thinks fit, declaring the contract or arrangement to have had effect as so varied on and after such date before the date on which the order is made as is so specified,
(c) an order refusing to enforce any or all of the provisions of such a contract or arrangement,
(d) an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct to refund money or return property to the person who suffered the loss or damage,
(e) an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct to pay to the person who suffered the loss or damage the amount of the loss or damage,
(f) an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct, at the person's own expense, to repair, or provide parts for, goods that had been supplied by the person who engaged in the conduct to the person who suffered, or is likely to suffer, the loss or damage,
(g) an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct, at the person's own expense, to supply specified services to the person who suffered, or is likely to suffer, the loss or damage, and
(h) an order, in relation to an instrument creating or transferring an interest in land, directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct to execute an instrument that:
(i) varies, or has the effect of varying, the first-mentioned instrument, or
(ii) terminates or otherwise affects, or has the effect of terminating or otherwise affecting, the operation or effect of the first-mentioned instrument.
(6) An application under subsection (2) may be made at any time within 6 years after the date on which the cause of action that relates to the conduct accrued.
(6A) Subsection (6) does not apply to a cause of action to which Division 6 of Part 2 of the Limitation Act 1969 applies.
(7) For the purpose of determining whether to make an order under this section in relation to a contravention of section 43, the Court may have regard to the conduct of the parties to the proceedings since the contravention occurred.
(8) The powers conferred on the Supreme Court under this section in relation to a contract or arrangement do not affect any powers that any other court may have in relation to the contract or arrangement in proceedings instituted in that other court in respect of the contract or arrangement."
[6]
General principles on misleading and/or deceptive conduct
The provisions of s 18 of schedule 2 of the ACL are in the same terms as the provisions of the former s 52 of the Trade Practices Act 1974 (Cth) on which there is much authority and in relation to which certain general principles have been accepted. The first and possibly the most important principle is that the words of the section ought not be given a gloss but applied in their ordinary and natural meaning and wide import.
The provision is not based upon any previously applicable cause of action in common law or equity. Nevertheless, concepts involved in the tort of deceit and passing off may be helpful in understanding any particular conduct that may arise under the act: Brown, Lionel & Anor v Jam Factory Pty Ltd & Anor (1981) 35 ALR 79; [1981] FCA 34.
The provision does not, of itself, create a liability, but prohibits conduct in trade and commerce, a contravention of which will give rise to damages, pursuant to the other provisions of the statute.
The conduct that is proscribed by the provisions of s 18 of the ACL is conduct that is misleading or deceptive or likely to mislead or deceive. For present purposes and the purposes of these reasons for judgment, the Court will use the term "misleading or deceptive" to include the circumstance that it is "likely to mislead or deceive". Conduct, as it is described in s 18(1) of the ACL, includes the making of a representation or statement which is misleading or deceptive.
It is necessary for a plaintiff, or person seeking damages, to satisfy the Court that the misleading or deceptive conduct led to the making of a decision or consequential conduct by the plaintiff or person who suffered damage. In this sense, the ordinary principles relating to causation apply.
However, the authorities established that, because of the use of the term "likely to mislead or deceive", all that is required is for there to be a real and not remote chance or possibility. It is not necessary to show that the possibility is more probable than not.
The section requires an objective assessment, by the Court, of the conduct in question and is not concerned, directly, with the subjective belief induced by the conduct. Nevertheless, the effect needs to be one that will likely affect the mind of the person, who is purportedly misled or deceived, and it is that which the Court assesses.
[7]
General Principles as to Unconscionable Conduct
The terms of s 21 of the ACL have already been recited. To understand s 21 of the ACL, it is necessary to compare it with the provisions of s 20 of the ACL.
By the provisions of s 20 of the ACL, a standard of conduct is prescribed such that a person is prohibited, in trade or commerce, from engaging in conduct that is unconscionable, within the meaning of the unwritten law from time-to-time.
The unwritten law, to which s 20 of the ACL refers, is or includes the concept of unconscionability in equity and applies when one party to a transaction is at a special disadvantage in dealing with the other party because of illness, ignorance, inexperience, impaired faculties, financial need or other circumstances affecting her or his ability to protect her or his own interest and the other party unconscientiously takes advantage of the opportunity thus placed in his/her/its hands: Blomley v Ryan (1956) 99 CLR 362 at 415; [1956] HCA 81. See also Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447, per Mason J at 461 and per Deane J at 474; [1983] HCA 14.
The foregoing should not be taken as a codification of that which may be able to be remedied by equity under the rubric of unconscionability. But it does not include unfair practice, simpliciter.
The only other comment that needs to be made for present purposes is that for equity to relieve unconscionability, it is unnecessary that the party taking advantage of the special disadvantage actually caused that disadvantage. It is sufficient if the party were aware of the special disadvantage and took unfair advantage of the opportunity presented.
The plaintiff in these proceedings relies on s 21 of the ACL, which is a provision that is wider in effect than the provisions of s 20 of the ACL. By operation of s 21(4) the Parliament has expressly provided that the operation of s 21 is not limited by the unwritten law relating to unconscionability.
Further, the Parliament has prescribed criteria which a Court may take into account in determining whether a person has contravened s 21 of the ACL. Again, the Parliament has expressly provided that the criteria, prescribed by s 22 of the ACL, do not limit the matters to which a Court may have regard.
Those criteria include: the relative strengths of the bargaining position of the supplier and the customer; the capacity of the customer to understand any documents relating to the supply or possible supply of the goods or services; any undue influence or pressure or unfair tactics used against the customer by the supplier; comparable costs of acquisition of the goods or services from a person other than the supplier; the consistency of the supplier's conduct towards one customer as against others; industry codes; the extent to which the contract governing the supply of the goods or services was able to be negotiated; the terms and conditions of any such contract; and the extent to which the supplier and the customer acted in good faith: see s 22(1) of the ACL.
[8]
The Meaning of 'Unconscionability'
It is important to understand that notwithstanding the fact that s 21 is of broader reach than the unwritten law relating to unconscionability, the term "unconscionable" does not equate with "unfair". The conduct must still be unconscionable, albeit that unconscionability is not confined to a situation where the purchaser, relevantly, is under a special disadvantage known to the vendor. It does require that the conduct show "no regard for conscience"; be inconsistent with that which is right or reasonable; importing a pejorative moral judgment: Hurley v McDonald's Australia Ltd [1999] FCA 1728, per Heerey, Drummond and Emmett JJ.
Ordinarily, unconscionability requires moral fault or responsibility rather than mere negligence and, in that regard, involves an intentional act. The limits of the meaning of "unconscionable" have not been adumbrated. Nor should they be. Nevertheless, it, at least, includes the dictionary definition, which are actions showing no regard for conscience or that are irreconcilable with what is right or reasonable: Qantas Airways Ltd v Cameron (1996) 66 FCR 246; [1996] FCA 1483 and involve a pejorative moral judgment.
In Australian Securities and Investments Commission v Kobelt (2019) 93 ALJR 743; [2019] HCA 18, the High Court recently considered the issue of unconscionability. In the joint judgment of Kiefel CJ and Bell J, their Honours said:
"[57] ASIC refers to Australian Competition and Consumer Commission v Lux Distributors Pty Ltd as illustrative of the correct approach. The Full Court of the Federal Court of Australia found that Lux Distributors Pty Ltd ('Lux') engaged in conduct in connection with promotion and supply of vacuum cleaners to three elderly customers that was, in all the circumstances, unconscionable contrary to s 51AB of the Trade Practices Act 1974 (Cth) and s 21 of the Australian Consumer Law. This was so notwithstanding the customers' voluntary entry into the sale contracts. The normative standard applied in Lux was that of 'honest and fair conduct free of deception'[51]. Notably, Lux's sales strategy employed a deceptive ruse to gain access to the customer's home and, once entry was gained, a selling technique that was designed to create a sense of obligation to purchase.
[58] Recognition that the supplier of a financial service may engage in conduct that is unconscionable, notwithstanding the recipient's voluntary entry into the contract for the supply of the service, does not make the absence of the exertion of undue influence an irrelevant consideration. Section 12CC(1)(d) invites the court to consider 'whether any undue influence or pressure was exerted on, or any unfair tactics were used against' the recipient of the financial service (emphasis added) as one of the factors to be weighed in determining whether, in all the circumstances, the supplier's conduct is unconscionable. The absence of the exertion of undue influence, pressure or unfair tactics bears on the assessment of whether the commercial advantage obtained by the supplier in connection with the supply of the financial service is an unconscientious advantage.
[59] For the same reasons, ASIC's challenge in its second ground to the weight given by the Full Court to the finding that Mr Kobelt did not act dishonestly must be rejected. ASIC argues that, to the extent that notions of moral tainting or obloquy 'suggest[s] a need for dishonesty or something more than the taking advantage of the special disadvantage' of the recipient, they are unhelpful in applying the statutory standard of unconscionability in the ASIC Act and cognate legislation. The submission does not go anywhere. It may be accepted that conduct in the supply of a financial service may be unconscionable in circumstances in which the supplier's conduct does not involve dishonesty. This is not to say that the absence of dishonesty, or other moral taint, is not a material consideration in determining whether, objectively, the supplier's conduct involves such a departure from accepted community standards in the supply of the financial service as to warrant the characterisation that it is unconscionable.
[60] The Full Court made clear that it approached the determination upon a view that consideration of moral obloquy had a role to play but was not a substitute for the statutory words. Their Honours correctly took into account the findings that Mr Kobelt acted with a degree of good faith and not dishonestly as among the circumstances to which it was necessary to have regard in determining whether his conduct fell below the statutory norm of conscience." (Citations omitted.)
[9]
Barbara Timms
Ms Timms' Affidavit of 3 August 2016 refers to her as the owner of Marina Villa 8 at Hacienda Holiday Park and attests to the fact that she "currently permanently reside[s] at Villa 8". The Villa is, in a somewhat irrelevant aspect of confusion in the proceedings, sometimes referred to a Site 66.
Ms Timms had been searching for a place to live, within her price range, after the death of her husband, which required her to sell the house in which they were living. She was referred by her sister-in-law to a website, www.tweedrelocatablehomes.com, to which she gained access.
There were three different price ranges, $69,000, $89,000 and $189,900, the latter being on the Tweed River. She was particularly interested in the more expensive Tweed River sites.
Ms Timms followed up the website and rang the contact number provided and spoke to a person by the name of Kirsty (Kirsty Simons). The conversation with Kirsty, or words to that effect, is set out at paragraph 7 of the Affidavit of Ms Timms.
Kirsty represented to her that the premises had been lived in previously and she made a time and date on which she could see the villas.
On the date arranged in April 2010, Ms Timms met Kirsty at the Hacienda Caravan Park. Ms Timms was accompanied by her daughter-in-law, Sue Hayter and her husband, Ian Hayter.
A person who identified herself as Kirsty met them at the entrance to the Homestead Park (an adjacent caravan/movable dwelling Park). Apparently, there is some degree of cooperation (and possibly some common Directors) as between Hacienda and Homestead Park. Kirsty showed Ms Timms (and the others) various homes within both Homestead and Hacienda Parks for comparison purposes.
The last homes, inspected by Ms Timms, were the Marina Villas. She looked at both Villas 8 and 9 and stood on the verandas of Villas 5, 6 and 7. Ms Timms had a conversation with Kirsty that included the following:
"My husband has passed away and I am selling our home. I will be looking to make this my new home."
The conversation also included issues about site fees. Kirsty informed Ms Timms that the sites for use were from $139 per week … "the new rent will be $175 a week, it goes up each April, based on CPI. Water and gas is included and electricity is about $40 per month."
[10]
Sandra Sorenson
Ms Sandra Sorenson swore Affidavits of 1 August 2016 and 25 May 2017. In the Affidavit of 1 August 2016, she attests to the fact that she and her late husband desired to retire and were keen to retire to a place that was close to the water, so that her husband and she could engage in boating and kayaking activities. They had experience of camping and enjoyed that experience.
In early October 2010, she was advised of the villa units for sale by a friend and she and her husband decided to camp, casually, at Hacienda Park. That stay made a very good impression and Ms Sorenson said that the park seemed to "tick all the boxes for what we had in mind to buy to retire in".
After a conversation between Ms Sorenson and her late husband, they approached the office and a representative of Hacienda, by the name of Peter (Peter Simons), drove them to look at the available locations. They informed Peter that they were looking for a place to live in their retirement.
Peter showed them a villa, being a Marina Villa and informed them that it was the last villa left in this size. There was a discussion about the possibility of building a carport and a further mention of their desire to live in the location in their retirement.
During the terms of that conversation, or one of the conversations that occurred, an enquiry was made by Ms Sorenson's late husband, as to the capacity to purchase the Villa conditional upon the selling of their current house, which they were in the process of selling. Peter, the representative of Hacienda, as already stated, informed them that this was not possible.
They were handed a brochure and shown the inside of the Villa, which they inspected at their leisure.
Ms Sorenson attests to the fact that she and her husband inspected under the Villa and noticed that it was sitting on concrete foundations and the power was hard-wired, with an electricity meter that was located at the front of the Villa. This was noticed, particularly, because Ms Sorenson's mother lived in a similar situation in Queensland and her home still had the wheels attached, and was perched on pillars, with extension leads from the power box to the home.
On returning home, and after discussion between them, Ms Sorenson's husband rang the number on the advertisement/brochure and said to the person who answered, words to the effect that they wanted to go ahead with the purchase and that their solicitor would be in touch to sort out the sale.
[11]
Percy and Gail Hannah
Ms Gail Hannah affirmed an Affidavit of 4 August 2016. She is the owner, with her husband Percy, of Marina Villa 7. Percival (Percy) Hannah affirmed an Affidavit of 4 August 2016.
Mr and Mrs Hannah had lived in a caravan park during the 1970s and early 1980s, before moving to bigger premises. In October 2010, they decided that they would like to move back to living in a caravan park, as they enjoyed the relaxed lifestyle. They sold the house and decided to examine that which was available.
In about late October 2010, Mr and Mrs Hannah went to the Hacienda Park, being the park adjacent to the Homestead Caravan Park, where they had previously resided. They went to the office and were greeted by Peter Simons. Mr Hannah had a conversation that included words with the following effect:
Percy Hannah: "We have just exchanged contracts on our home and we are looking for a new permanent home to live in and eventually retire into."
Peter Simons: "That's fine there are various sized new homes for sale in the Homestead Park."
Mr and Mrs Hannah walked around Hacienda Park and Homestead Park and wanted to inspect the inside of some of the homes. Peter Simons supplied the keys and accompanied them to look at three or four homes of varying sizes. During the course of that inspection, Percy Hannah had a conversation with Peter Simons to the following effect:
Percy Hannah: "We would prefer the two-bedroom homes as we have grandchildren that would come and stay from time to time."
Peter Simons: "You can have your grandchildren come and sleep over at any time."
After inspecting the two parks, Mr and Mrs Hannah decided that they might be interested in a site at Homestead Park, with a carport and enquired whether they could build another carport on the opposite side of the home. The response was that the owner would have to be asked and Peter Simons would let them know.
Whilst they were returning to the office, Mr and Mrs Hannah walked through the gate that divides the two parks and noticed the villas on the waterfront. A conversation occurred in the following terms:
Peter Simons: "There are two Villas on the waterfront for sale as well. Do you want to have a look at them?"
Percy Hannah: "Yes".
The Hannah's looked through Marina Villas 6 and 7 and decided that the view from Marina Villa 7 was better. Mr Hannah noticed (as did Mrs Hannah) that the Marina Villa 7 was fixed to the ground. Steel posts set into concrete were supporting the Villa and, after inspecting the outside of Marina Villa 7, a conversation occurred in the following terms or to the following effect:
Percy Hannah: "Are these ones also permanent?"
Peter Simons: "Yes, they are and you can have your grandchildren sleepover at any time."
Percy Hannah: "How much is this one?"
Peter Simons: "This one is 189,900."
Percy Hannah: "Would you let it go any cheaper?"
Peter Simons: "No, they are firm on the price because the other villas would go on the market at a higher price."
Percy Hannah: "Oh that would be good"
Peter Simons: "Yeah, so if you ever went away at any time, and would like to have the family or friends stay, it would be okay as well and there are no extra fees. Also if you wanted to rent the villa out at any time, it would be okay, as you bought it, it would be yours to do with what you wished."
[12]
Brian and Annette Hamilton
Annette Hamilton swore Affidavits of 9 August 2016 and 23 May 2017, each of which was read in the proceedings and forms part of Exhibit C2. Brian Hamilton swore an Affidavit of 9 August 2016, which also forms part of Exhibit C2.
The terms of the manner in which Brian and Annette Hamilton purchased their Marina Villa are in like circumstances to the circumstances of the purchasers that have already been mentioned. They own Marina Villa 5. They had moved from their initial residence in Cairns to Rainbow Beach and sought to retire to a location closer to the airport and other facilities.
Brian Hamilton saw an advertisement, visited the Hacienda website, as well as looking at the location using Google. In April 2010, Mr Hamilton had a conversation with Kirsty Simons on a mobile number obtained from the website, which number is repeated in the Affidavit, which includes the statement from Mr Hamilton that he was "looking for a property to live in permanently with my wife". There was discussion in relation to the Marina Villas.
On or around 16 April 2010, Mr and Mrs Hamilton took their caravan to Tallebudgera and Kirsty Simons met them there and drove them to Hacienda Park to view the properties. In the course of the inspection of the properties a conversation occurred, with Kirsty Simons, that included the statement by Brian Hamilton, heard by Annette Hamilton, that they "will be living in the Villa permanently", and would need a carport. To that comment Kirsty agreed a carport would be fine, as long as it wasn't a full garage and consultation with the other villa owners may be necessary and the approval of the park owner would be required. Further, in the course of that conversation, the following words were uttered:
Brian Hamilton: "If we buy permanently and the ownership park changes, how will that affect us?"
Kirsty Simons: "The Park has been here for 25 years, you won't have to leave."
In early May 2010, Annette and Brian Hamilton stayed at Hacienda Park in one of the rented villas near the Marina Villa which they ultimately purchased. During that stage, a further conversation was had between Brian Hamilton and Kirsty Simons, in the hearing of Annette Hamilton, to the following effect:
Brian Hamilton: "Look, we love the Villa we want to go ahead with buying it".
Kirsty Simons: "You will have to fill in an Occupancy Agreement today and you need to pay your site rent via direct deposit".
Brian Hamilton: "So with any changes to the Villa, we can make them at our discretion?"
Kirsty Simons: "As long as you stay within the footprint of the Villa, you can make any changes, John in Marina Villa 10 has already made changes to his Villa".
[13]
Bruce Denley
Bruce Denley owns Marina Villa 2 in the Hacienda Park and affirmed an Affidavit of 3 August 2016 and an Affidavit of 25 May 2017. Mr Denley is 73 years of age and sought to retire to the Marina Villa.
He had seen an advertisement and contacted the number there advertised as "Affordable Living on the Tweed River", which was said, in the advertisement, to be the number of Kirsty. The advertisement is before the Court.
Sometime in early July 2012, Mr Denley telephoned Kirsty and engaged in a conversation during which Kirsty organised an overnight stay in Hacienda Park for a cost of $140 and arranged to meet him and show the homes in the park on the next day. In the course of the aforesaid conversation, Mr Henley said words to the effect of:
Bruce Denley: "I'm looking for long-term retirement accommodation to live in there permanently."
Kirsty Simons: "This will fit into exactly what you want."
On 17 July 2012, Mr Denley received a letter from Kirsty Simons setting out the cost of a one-bedroom home for $69,900 and a two-bedroom home for $92,900. The letter is before the Court.
On Thursday, 19 July 2012, Mr Denley attended Hacienda Park and stayed in accommodation provided at $140 per night. Mr Denley met with Kirsty Simons on Saturday 21 July during which a conversation to the following effect occurred:
Bruce Denley: "I'm interested in possibly a two-bedroom home so my daughter and grandchildren can visit."
Kirsty Simons: "I'll show you a couple of homes."
Bruce Denley: "What inclusions are there?"
Kirsty Simons: "The furnishings can be purchased also at an extra price."
Kirsty Simons: "The site fees for Hacienda are $158 and for Homestead they are $176."
A number of homes in Hacienda and in Homestead were examined and Mr Henley indicated that he would think about it and contact her. During the course of that conversation Mr Henley asked whether the owner was likely to sell the park and what would happen if he did, to which Kirsty Simons replied:
"No, he wouldn't be building new homes if he was planning on selling the park." [The reference to "he" is an obvious reference to Mr Willmott.]
On 30 July 2012, there was a further conversation in which Mr Denley expressed interest in sight 169 on the Homestead Holiday Park site and indicated he would like to have another look around.
[14]
John and Diana Hodson
Diana Hodson affirmed Affidavits of 2 August 2016 and 22 May 2017. Her husband, John Hodson, affirmed Affidavits of 2 August 2016 and 22 May 2017 also.
The Hodsons holidayed with friends at a caravan park in New South Wales and considered that the lifestyle would appeal to them. They made enquiries about whether one could live permanently in a caravan park and were informed that Queensland law did not allow permanent living in caravan parks.
Enquiries were made of councils on the North Coast of New South Wales and the Hodsons were informed that they could live permanently in parks in New South Wales. Further enquiries were made as to an appropriate residence.
The Hodsons spoke to persons who recommended Hacienda Park. Mrs Hodson searched on Google, with her husband, and found a website advertisement for Hacienda Park on which they followed through.
On 7 October 2009, John and Diana Hodson met with Ms Kirsty Simons in the visitor's car park at the front of Homestead Holiday Park, following an appointment having been made. They examined UMDs on both Hacienda Park and the Homestead Holiday Park and Ms Simons showed them a number of different styles of homes with different configurations.
During the course of the examination on 7 October 2009, Ms Simons showed the Hodsons the Marina Villas in the Hacienda Park, which the Hodsons thought were more to their liking. There was a conversation between John Hodson and Kirsty Simons during which the following exchange occurred or words to the following effect:
John Hodson: "We are buying this home with the intention of living in it at some stage in the future. I have spoken to other parks tell me there may be some restriction on permanent living on some sites."
Kirsty Simons: "Not on these sites; you can stay here as long as you like; these are permanent sites. If you are thinking of living here, I think Villa 10 would be the best one for you, because it has a bigger site and if you buy early you will get a second parking space. It's for sale for $189,900."
Both Diana and John Hodson recall the three key issues associated with the site from Ms Simons in answer to the question as to the possible restriction on permanent living. Each of them attests to the fact that they would not have bought the Villa if they thought they could not live in it permanently.
[15]
John Pestridge
Mr Pestridge affirmed an Affidavit of 3 August 2016 and another Affidavit of 26 May 2017 and is the owner of a dwelling on Marina Villa 9 at Hacienda Park.
Mr Pestridge sold his house in Brisbane in August 2010 and, enjoying the lifestyle in the Coolangatta area, was looking for a place to buy. He saw an advertisement for living on the Tweed River with prices from $69,900.
On or about 5 October 2010, he made contact by telephone with the number provided in the aforesaid advertisement and spoke to Kirsty Simons. She was, apparently, in Melbourne at the time and put him in touch with Peter Simons and gave him directions to travel from his then current location to Hacienda Park.
On the same date, namely, 5 October 2010, Mr Pestridge met with Peter Simons at Homestead Park, who showed him three homes in the price range advertised. Mr Simons then showed Mr Pestridge three other homes that were a little bigger, in the price range of $89,900. Mr Pestridge asked if there were any bigger still, to which Mr Simons replied that there are, at $125,000 and showed him a home at that price.
On 6 October 2010, at approximately 10.00am, Mr Pestridge met with Peter and Kirsty Simons at the Homestead Park and Peter Simons informed him that there would be enough room to put a veranda on the home, in answer to an enquiry that had been made the day before.
At one stage during the course of the exchange, Kirsty Simons informed Mr Pestridge that there were other homes in our other park, namely, Hacienda Park, which were much more expensive but had bigger verandas and Mr Pestridge could move in straight away.
Mr Pestridge then followed Kirsty Simons to Marina Villa 9. From that Villa, on entering, there was a view of the water, Mount Warning and the surrounding area. Mr Pestridge observed that the Villa had concrete footings, was hard-wired and had full sewerage and plumbing fittings. It also had a permanent walkway and deck.
During the course of the exchange with Kirsty Simons as to the price, which was quoted at $189,900, and the site fees, which were quoted at $175 per week, rising, each year, by the CPI, the following exchange occurred:
John Pestridge: "That's alright; CPI is only a few dollars a week. I am looking at retiring here and living on a permanent basis. I've got one problem, the sign at the gate says only one vehicle per house. I have two vehicles?"
Kirsty Simons: "That's OK, you can put one in the driveway next to the house, and seeing as this is a dead-end street, I'll approve you to park another car out the front, as close to the house as possible, so emergency vehicles can get past."
John Pestridge: "That sounds good."
Kirsty Simons: "Also there is Council approval for this Villa to have its own private boat pontoon included down the track if you wanted one."
[16]
Helen Holt
Ms Holt worked for Hacienda at Hacienda Park from 2000 until 2013. She worked with her husband, Gary, who has since passed away and worked differing hours.
On commencement at Hacienda in about February 2000, Ms Holt was the Assistant Park Manager, together with her husband. In around December 2000, Ms Holt was promoted to the position of Park Manager. She remained in that position until 2006.
In 2006, Tanya Hickling commenced work for the Park. Ms Hickling is the daughter of Mr Willmott (the named defendant).
The formal relationship between Ms Holt and her husband and Hacienda was organised through Mr Willmott and in discussions with him. It seems from some of the material that, at least for tax purposes, a contract arrangement was in place. GST was levied; a handwritten invoice was provided by Ms Holt and her husband each month; the amount invoiced was the same each month.
After Ms Holt's husband, Gary, passed away, GST was not paid as a result of Ms Holt learning that the earnings were insufficient to warrant the imposition of GST and discussing that matter with Mr Willmott. She did enjoy paid sick leave and holidays.
Ms Holt described the arrangements with residents at Hacienda Park in her Affidavit sworn 24 May 2017. During the period 2000 to 2003, there were only approximately 10 long-term casuals or "weekender" residents, being residents who used their site genuinely as a holiday place.
The rest of the tenants were Permanent Residents. Permanent Residents were issued letter boxes for the reception of mail by Australia Post and for any correspondence from the Park.
There were three different types of guests at Hacienda Park: Short-Term Casuals, being guests and/or holidaymakers that stayed on a one-off basis; Long-Term Casuals, being guests who rented a site in the Park and may have had a caravan or structure on the site; and Permanent Residents, who would live at the Park.
Short-Term Casuals would pull in to the premises at Hacienda Park, and sometimes book ahead, and paid a fee for the nights that they stayed. They would not apply to be an occupant of the Park.
Long-term casuals were required to apply to be an occupant of the Park and paid a weekly fee, which, at least initially, was significantly less than the fee paid by a permanent resident, because the Long-Term Casual would only be there for some of the time during a year. For these Long-Term Casuals there were restrictions on how many days they could stay consecutively and a restriction on how many days in any one year. During the time that Ms Holt worked at the Park, she can recall about 10 Long-Term Casual sites.
[17]
Council Officers
The plaintiff called three witnesses who are or were officers of Tweed Shire Council, being Peter Ainsworth, a Senior Environmental Health Officer, Seth Philbrook, Town Planner and Alain Le Grande, a Compliance Officer.
Mr Le Grande featured in the evidence given by occupants of the Marina Villas and, essentially, corroborated the evidence they gave in that respect. Otherwise, the Council witnesses were taken through a number of documents, otherwise in evidence, and provided context for those documents as well as evidence as to the workings of Council, in relation to caravan and holiday parks such as Hacienda Park.
To the extent that the Council witnesses "explained" documents produced by the Council in answer to subpoenas, as distinct from providing the factual context in which the letter was written, I do not consider their evidence of particular assistance. The documentation speaks for itself.
The documents are business records of Council, produced, as earlier stated, in answer to subpoena, and admissible as business records. The documents, as stated, speak for themselves. The evidence of the Council witnesses as to the operation of the legislation and regulations, while of assistance in understanding how Council viewed their responsibility and operated under the legislation, is a matter for the Court and not the offices of Council.
Nevertheless, I will briefly summarise the evidence provided by them and, in so doing, discuss the documents to which they were taken. Those documents are an important aspect of the issues between the parties.
Mr Ainsworth, the Environmental Health Officer, has responsibilities which include the administration of legislation on behalf of the Council; food inspection; and common health inspection duties. There are some 18 caravan or holiday parks for the administration of which Council is responsible. Mr Ainsworth described those responsibilities as difficult at times and quite challenging because of the operation of the legislation and the requirement to deal with both the park owner and resident.
Mr Ainsworth was taken to Exhibit A, p 1 which is the Development Application lodged by Hacienda to relocate 10 sites within the Park. While Mr Ainsworth had seen the document before, he did not recall when he first saw it. On its face, the document is signed by Mr Willmott and lodged by Hacienda Caravan Park Pty Ltd (in these reasons call Hacienda).
[18]
The Drawing of Inferences
Generally, in civil proceedings, it is for the plaintiff to prove on the balance of probabilities those facts that are necessary to establish the cause of action and the damages suffered. The means by which a plaintiff proves particular facts is by adducing evidence that directly proves that the existence of the fact is more probable than not. This can be done by the adducing of a single piece of evidence to that effect or a combination of evidence the effect of which is that the fact, being a fact in issue in the proceedings, is more probable than not. Ultimately, the Court must be satisfied, on the balance of probabilities, of the existence of the fact upon which the plaintiff relies.
Apart from the adducing of direct evidence, a party is entitled to rely upon inferences that may be drawn from evidence. There is nothing peculiar or esoteric about the drawing of inferences. It is a process that is performed by everyone in everyday life. It is not a process peculiar to legal reasoning. In the words of Windeyer J in Jones v Dunkel it is "plain commonsense". In the words of Mahoney JA in Fabre v Arenales (1992) 27 NSWLR 437 at 445:
"A factual inference (if A, B, C exist, Z exists) is open if, to quote the words of Knox CJ and Dixon J, 'human experience would be contradicted if' Z did not exist: see the cases referred to in Jones v Sutherland Shire Council (at 222 et seq). It follows that the inference will or may be drawn if general human experience (plain commonsense) will not be contradicted if the inference be drawn."
The judgment of the High Court in Jones v Dunkel was concerned with the drawing of an inference in an action for negligence as to whether the defendant driver had been travelling on the wrong side of the road at the time of the accident. The defendant had sought a verdict by direction, which was refused.
The jury returned a verdict in favour of the defendant and the plaintiff appealed to the Court of Appeal seeking a re-trial based upon the inference that ought to have been drawn from the failure of the defendant to give evidence during the trial and the statement by the defendant, made some days after the accident, in which no mention of the side of the road on which the defendant had been travelling was made.
Essentially, the appeal turned on the direction given by the trial judge to the jury. The appeal was dismissed by the Court of Appeal and the High Court reversed that judgment and ordered a new trial. In the course of the reasons for judgment of the High Court, Windeyer J said:
"It is, I realise, always possible to confuse mere conjecture with reasoned conclusion, and to regard the mere fact that circumstances are consistent with a conjecture as corroboration of it. Nevertheless, I think that a jury properly directed might - not necessarily should - reasonably infer that immediately before the vehicles collided that driven by Hegedus was on the wrong side of the road. A jury could, in my view, properly think it more probable that this was so than that it was not. The cause of the collision can be only a matter of conjecture; but on which side of the road it occurred is, I think, susceptible of rational inference. (Citations omitted.) (Jones v Dunkel, at 319-320.)
[19]
The Conclusions of Fact on Liability
It is necessary, before setting out the conclusions of fact, to comment on the demeanour and attitude of the witnesses called by the plaintiff. Before doing so there were formal admissions that it is necessary to recite. There are two such admissions. First, the first defendant, Jonval Builders, was not at any material time a Licensed Credit Provider within the meaning of the National Consumer Credit Protection Act 2009 (Cth) as pleaded in [55A] and [143A] of the Further Amended Statement of Claim.
Secondly, Tweed Shire Council has not consented to or approved any community map to replace or supersede that which is dated 17 January 2011, being community map reference CP00031/11, a number of copies of which are in evidence and, for convenience, identified as the map at p 376 of Exhibit A. That map (Exhibit A, p 376) has been the subject of comment earlier in these reasons for judgment.
Further, each of the witnesses, called by the Commissioner, was believable, reliable and honest. In most instances, the evidence of the purchaser/occupier of the Marina Villas did not, in any respect, seek to exaggerate that which occurred or to elaborate in a manner that may have assisted the Commissioner's case on their behalf.
None of the purchaser/occupier witnesses sought to dissemble and each of them honestly admitted when their memories were not precise or perfect. Nevertheless, the representations made to each of the purchasers/occupiers were, with only slight variations that may be attributable to the manner in which the witness may have recalled the conversations, almost identical.
Given the evidence of Ms Holt that each of the staff at Hacienda were coached in what to say, the similarity between the representations made to each of the purchasers/occupiers is unsurprising. Moreover, even though each of them gave evidence of precise conversations (or conversations to the effect of fairly precise representations), largely, it was not suggested that the recollection of the conversation was inaccurate. Nor was it suggested that the conversations as attested had not occurred.
While it was put to each of the purchasers/occupiers (and Ms Holt) that the staff at Hacienda represented that the 180 day and 28 day limits were not policed, it was not, generally, suggested that the other representations and other conversations did not occur.
[20]
The Pleaded Case and Response
The plaintiff seeks declarations of contraventions of the ACL (or its predecessors); injunctions restraining the defendants from engaging in contraventions of the ACL, including orders to cease so engaging; and compensation for the purchasers/occupiers.
It is unnecessary to recite the pleadings or summarise them in detail. Nevertheless, because of the manner in which the defendant has presented its case, some overall summary of the pleading is necessary.
The plaintiff pleads that the defendants knew that a caravan park must obtain development consent from the relevant local Council (in this case, Tweed Shire Council ("the Council"). That development consent, the plaintiff pleads, requires approval for the location of long and short-term sites, before such sites can be operated by one or other of the defendants.
Further, the defendants or one of them was required to obtain a Caravan Park Approval to Operate pursuant to the terms of s 68 of the Local Government Act. Approval must include a community map which defines the park layout and the location of approved long-term and short-term sites and amenities. Further, the approval to locate a structure on a particular site, involved approval of the particular structure by approval of its size and plan.
Hacienda Park, according to the pleadings, was situated on land that had been zoned and notified as a "flood prone land". A caravan park must obtain approval of the Council for the placement of a relocatable home, rigid annexes or associated structures on a site notified as flood prone.
Further, the pleadings allege that that Hacienda was issued with an Approval to Operate Hacienda Park by the Council, which allowed for 97 long-term sites and 99 short-term sites. In the case of a short-term site, it must not be occupied by a person for a single period of more than 150 days in a 12-month period, unless it is a holiday van, which must be owned and rented out by Hacienda.
Application for Approval must be made by Hacienda prior to the installation of rigid annexes and Unregistrable Movable Dwellings (UMD) on a site. Alterations to the allocation of short-term and long-term sites can only be made by a variation to the Development Application Approval and involved Hacienda submitting a Development Application and the Council approving it. Where approval has not been granted (either initially or by variation) by the Council, the site and any dwelling upon it may not be occupied.
[21]
The Case for the Defendants and Conclusions
In answer to the foregoing pleaded case and the submissions made in support thereof, based on the plaintiff's view of the evidence, the defendant's assert a number of matters. Some of the matters asserted are, at best, "debating points". There is a reference to the use of the term "consumers", by the plaintiff, but, however inaccurate it is said that proposition may be in relation to some at least of the occupiers, it makes little or no difference to the pleaded case or the evidence in support of it.
After dealing with the onus and standard of proof, which material is somewhat trite, the defendants deal with the Jones v Dunkel inferences upon which the plaintiff seeks to rely. In answer to the utilisation of inferences based upon the proposition of the High Court in Jones v Dunkel, the defendants first refer to an Affidavit of Ken Lee filed 20 January 2017. That affidavit was not read or relied on in the proceedings and the material, to which they refer, in relying on that affidavit, cannot affect the outcome of this judgment or the drawing of any inference.
Similarly, reference is made to some communication between the defendants' current solicitor and Ms Kirsty Simons, but, again, that is not the subject of evidence before the Court. Notwithstanding that it is not the subject of evidence, some significant submission was based upon the communication, which alleges that the plaintiff (or a representative thereof) contacted one or other of the witnesses hitherto notified as persons on behalf of whom an affidavit or draft affidavit had been served by the defendants.
First, there is no property in a witness. Any party is entitled to contact any witness, other than another party, without notification of other solicitors in the proceedings. Secondly, if, as suggested, the evidence of Mr Peter Simons and Ms Kirsty Simons was no longer of assistance to the defendants' case, all that such a proposition involves is to confirm that which arises from the inference available under the principles espoused in Jones v Dunkel.
Lastly, none of the alleged communication involves Mr Willmott, who, as earlier stated, is the central management and control of the corporations that are the other defendants and is "involved in" the contraventions. Nor does it relate to or involve Ms Hickling.
[22]
Orders
The plaintiff seeks multiple orders. The plaintiff seeks declarations; injunctive relief; and damages or compensation payable to each of the occupiers of the Marina Villas to which reference has been made. The submissions of the defendants raise issues of principle and of fact, relating to those orders.
First, it is said there is no evidence upon which the Court could be satisfied that there is a danger of further conduct that is misleading or deceptive or unconscionable. To the extent that the proceedings have related only to the question of the Marina Villas and the Marina Villa sites, the defendants' submission is partly accurate, to the extent that there are no more Marina Villas and no more Marina Villa sites available for sale or occupation. However, advertising continues. If, as the plaintiff requests, the Sale and Occupation Agreements are rescinded and orders are made for the return of the purchase prices, those Marina Villas and Marina Villa sites would again be available for "sale".
There is no suggestion that the conduct in which the defendants have engaged and which is outlined in these reasons for judgment would not occur again. On the contrary, the attitude of the defendants in these proceedings is that there is no reason why the defendant ought not engage in that conduct and nothing impermissible in the conduct itself (or, presumably, its repetition).
Against that, the defendants are now aware of the view of the Court of their conduct. It may well be that, now that the defendants are aware of the unlawfulness and illegality of their conduct, they would not engage in it.
On the basis of the evidence before the Court, I am inclined to the view that there is a real threat that the conduct would continue. Nevertheless, I am also mindful of the fact that the plaintiff is a regulator, which is capable of seeking injunctions if the conduct should be repeated or, in the case of advertising, continues. In the circumstances, no injunctive relief will issue at this point in time, but the Court will grant leave to the plaintiff to approach the Court for injunctive relief, if there were to exist an indication of a threat of further conduct of the kind in which the defendants have already engaged.
Declarations will be made in accordance with the orders sought by the plaintiff. As to the orders for compensation and/or damage, there are a number of issues that arise. First, I am satisfied that, but for the misrepresentations and or unconscionable conduct, none of the occupiers would have purchased the Marina Villas and none of them would have entered into the Occupation Agreement relating to each of them.
[23]
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: 31 December 2019
Parties
Applicant/Plaintiff:
Commissioner for Fair Trading
Respondent/Defendant:
Jonval Builders Pty Ltd
Legislation Cited (9)
Trade Practices Act 1974(Cth)
Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Movable Dwellings) Regulation 2005(NSW)
Lest it be thought otherwise, and notwithstanding the lack of reference thereto in the pleadings in this matter, in the pre-1 January 2011 version of the FTA, there was a provision (s 68) that allowed for actions in damages. The reliance on s 72 is as a result of the fact that it is the Commissioner that has brought the proceedings and, therefore, compensation and/or damage under the FTA arises in relation to the individual purchasers and can be sought pursuant to the provisions of s 72 of the FTA.
As earlier stated, on 1 January 2011, the FTA was amended and the provisions of the current ss 27 and 28 were inserted. The terms of ss 27 and 28 of the post-2011 FTA are in the following terms:
"27 The Australian Consumer Law text
The Australian Consumer Law text consists of:
(a) Schedule 2 to the Competition and Consumer Act 2010 of the Commonwealth, and
(b) the regulations under section 139G of that Act.
28 Application of Australian Consumer Law
(1) The Australian Consumer Law text, as in force from time to time:
(a) applies as a law of this jurisdiction, and
(b) as so applying may be referred to as the Australian Consumer Law (NSW), and
(c) as so applying is a part of this Act.
(2) This section has effect subject to sections 29, 30 and 31."
As a consequence of the promulgation of ss 27 and 28 of the post-2011 FTA, the provisions of Schedule 2 (the ACL) of the Competition and Consumer Act 2010 (Cth) (the "Commonwealth Act") apply, pursuant to the terms of the FTA, as it operated after 1 January 2011. Further, the text of the foregoing Schedule is referred to in the Commonwealth Act as the "Australian Consumer Law", and, pursuant to s 28 of the FTA, as it existed after 1 January 2011, its application under that statute is referred to as the "Australian Consumer Law (NSW)".
Apart from noting how the ACL applies, and by virtue of which statutory provision, it is unnecessary to refer again to the provisions of either s 27 or s 28 of the FTA (as it existed after 1 January 2011). It is necessary to recite the provisions of ss 18, 21, 232, 237 and 243(d) of the ACL, which apply by virtue of the FTA.
To avoid confusion, hereafter I will refer, except where necessary to differentiate, to the substantive provisions of the ACL, as if it were a reference to the ACL, which are in the following terms:
"18 Misleading or deceptive conduct
(1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
(2) Nothing in Part 3-1 (which is about unfair practices) limits by implication subsection (1).
Note: For rules relating to representations as to the country of origin of goods, see Part 5-3.
…
21 Unconscionable conduct in connection with goods or services
(1) A person must not, in trade or commerce, in connection with:
(a) the supply or possible supply of goods or services to a person; or
(b) the acquisition or possible acquisition of goods or services from a person;
engage in conduct that is, in all the circumstances, unconscionable.
(2) This section does not apply to conduct that is engaged in only because the person engaging in the conduct:
(a) institutes legal proceedings in relation to the supply or possible supply, or in relation to the acquisition or possible acquisition; or
(b) refers to arbitration a dispute or claim in relation to the supply or possible supply, or in relation to the acquisition or possible acquisition.
(3) For the purpose of determining whether a person has contravened subsection (1):
(a) the court must not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention; and
(b) the court may have regard to conduct engaged in, or circumstances existing, before the commencement of this section.
(4) It is the intention of the Parliament that:
(a) this section is not limited by the unwritten law relating to unconscionable conduct; and
(b) this section is capable of applying to a system of conduct or pattern of behaviour, whether or not a particular individual is identified as having been disadvantaged by the conduct or behaviour; and
(c) in considering whether conduct to which a contract relates is unconscionable, a court's consideration of the contract may include consideration of:
(i) the terms of the contract; and
(ii) the manner in which and the extent to which the contract is carried out;
and is not limited to consideration of the circumstances relating to formation of the contract.
…
232 Injunctions
(1) A court may grant an injunction, in such terms as the court considers appropriate, if the court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute:
(a) a contravention of a provision of Chapter 2, 3 or 4; or
(b) attempting to contravene such a provision; or
(c) aiding, abetting, counselling or procuring a person to contravene such a provision; or
(d) inducing, or attempting to induce, whether by threats, promises or otherwise, a person to contravene such a provision; or
(e) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or
(f) conspiring with others to contravene such a provision.
(2) The court may grant the injunction on application by the regulator or any other person.
(3) Subsection (1) applies in relation to conduct constituted by applying or relying on, or purporting to apply or rely on, a term of a contract that has been declared under section 250 to be an unfair term as if the conduct were a contravention of a provision of Chapter 2.
(4) The power of the court to grant an injunction under subsection (1) restraining a person from engaging in conduct may be exercised:
(a) whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of a kind referred to in that subsection; and
(b) whether or not the person has previously engaged in conduct of that kind; and
(c) whether or not there is an imminent danger of substantial damage to any other person if the person engages in conduct of that kind.
(5) Without limiting subsection (1), the court may grant an injunction under that subsection restraining a person from carrying on a business or supplying goods or services (whether or not as part of, or incidental to, the carrying on of another business):
(a) for a specified period; or
(b) except on specified terms and conditions.
(6) Without limiting subsection (1), the court may grant an injunction under that subsection requiring a person to do any of the following:
(a) refund money;
(b) transfer property;
(c) honour a promise;
(d) destroy or dispose of goods.
(7) The power of the court to grant an injunction under subsection (1) requiring a person to do an act or thing may be exercised:
(a) whether or not it appears to the court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; and
(b) whether or not the person has previously refused or failed to do that act or thing; and
(c) whether or not there is an imminent danger of substantial damage to any other person if the person refuses or fails to do that act or thing.
…
237 Compensation orders etc. on application by an injured person or the regulator
(1) A court may:
(a) on application of a person (the injured person ) who has suffered, or is likely to suffer, loss or damage because of the conduct of another person that:
(i) was engaged in a contravention of a provision of Chapter 2, 3 or 4; or
(ii) constitutes applying or relying on, or purporting to apply or rely on, a term of a contract that has been declared under section 250 to be an unfair term; or
(b) on the application of the regulator made on behalf of one or more such injured persons;
make such order or orders as the court thinks appropriate against the person who engaged in the conduct, or a person involved in that conduct.
Note 1: For applications for an order or orders under this subsection, see section 242.
Note 2: The orders that the court may make include all or any of the orders set out in section 243.
(2) The order must be an order that the court considers will:
(a) compensate the injured person, or any such injured persons, in whole or in part for the loss or damage; or
(b) prevent or reduce the loss or damage suffered, or likely to be suffered, by the injured person or any such injured persons.
(3) An application under subsection (1) may be made at any time within 6 years after the day on which:
(a) if subsection (1)(a)(i) applies--the cause of action that relates to the conduct referred to in that subsection accrued; or
(b) if subsection (1)(a)(ii) applies--the declaration referred to in that subsection is made.
…
243 Kinds of orders that may be made
Without limiting section 237(1), 238(1) or 239(1), the orders that a court may make under any of those sections against a person (the respondent) include all or any of the following:
…
(d) an order directing the respondent to refund money or return property to the injured person;"
Some attention was directed to whether the consumers to whom the Commissioner referred were "consumers" in the defined sense in the ACL. First, the operation of neither s 18 nor s 21 of the ACL is confined to consumers. Secondly, s 42 of the FTA is not confined to consumers.
While s 43 of the FTA is directed to the supply of goods or services to "consumers", by operation of s 43(6) of the FTA, supply does include supply for the purpose of "re-supply". Further, no party relies on ss 23, 29, 30, 34 or Pt 3-2 of the ACL, which are provisions specifically confined to consumers or consumer contracts.
As earlier stated, it is alleged that the conduct of each of Jonval and Hacienda and Mr Willmott adversely affected a number of persons. Those persons were Bruce Denley (Villa 2); Brian and Annette Hamilton (Villa 5); Sandra Sorenson (Villa 6); Percy and Gail Hannah (Villa 7); Barbara Timms (Villa 8); John Pestridge (Villa 9); and John and Diana Hodson (Villa 10). Each of them gave evidence. As did others. No oral evidence was adduced by the defendants. It is necessary to deal with the evidence, but it is first necessary to put that evidence in the context of the principles and law to be applied.
In the same vein, the Court is not concerned with examining the intention of the person, alleged to be in contravention of the provision, to mislead or deceive and, unless the conduct is the mere passing of information that is disclosed at the time it is passed, regardless of the intention of the person who has misled or deceived, a contravention may have occurred: Yorke v Lucas (1985) 158 CLR 661; [1985] HCA 65.
It is the whole of the conduct that must be examined for the purpose of determining whether particular words or acts are, in the context of the whole conduct, misleading or deceptive. Nevertheless, even words that are technically accurate, or literally true, may be misleading or deceptive if the statement conveys a meaning that is false. This is particularly relevant in these proceedings, where on the defendants' case, some of the words used, e.g. the duration "will not be policed", were technically accurate, but gave, the plaintiff submits, a misleading or deceptive effect.
In some respects, this is part of the broader proposition that conduct includes an omission or a failure or refusing to do an act, if, in the context of the conduct in trade and commerce, the omission or refusal leads to an objectively determined misleading of the person to whom the representation is made or to whom the conduct is directed.
Notwithstanding the earlier comment relating to objective analysis, where the conduct in question or the representation made is a representation as to the opinion of the person engaged in the conduct, then, ordinarily, the mere fact that the opinion is incorrect will not amount to misleading or deceptive conduct, but merely be a representation that the opinion is genuinely held and, usually, but not always, that there is a rational basis for the opinion that is held.
An opinion, nevertheless, may amount to misleading or deceptive conduct, if the Court were satisfied that the opinion was not, in fact, held or that it lacked any or any adequate or rational foundation. The latter statement is particularly accurate, when referring to an expert opinion or the opinion of the person who ought to know all of the facts that would reasonably give rise to the expression of the opinion.
As the High Court made clear in a number of judgments, the Court, in applying the provisions of s 18 of the ACL (or its predecessors) is required to examine whether the evidence establishes the representations or conduct that is pleaded and, secondly, whether the evidence establishes that the representations, or conduct, are, or is, false, misleading or deceptive: Campomar Sociedad Limited v Nike International Limited (2000) 202 CLR 45; [2000] HCA 12 at [105]; Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191; [1982] HCA 44; Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60.
In Parkdale Custom Built Furniture, supra, Gibbs CJ, referring to the use of the term misleading or deceptive: at CLR 198, said:
"The words of s 52 [a reference to the former Trade Practices Act] require the court to consider the nature of the conduct of the corporation against which proceedings are brought and to decide whether that conduct was, within the meaning of that section, misleading or deceptive or likely to mislead or deceive. Those words are on any view tautologous. One meaning which the words 'mislead' and 'deceive' share in common is 'to lead into error'. If the word 'deceptive' in section 52 stood alone, it would be a question whether it was used in a bad sense, the connotation of craft or overreaching, but 'misleading' carries no such flavour, and the use of that word appears to render 'deceptive' redundant."
As was made clear in the joint judgment of Deane and Fitzgerald JJ in Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 202-203; [1982] FCA 336, cited with approval in the plurality judgment in Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25, the contravening conduct or allegedly contravening conduct, in order for it to induce error of the kind from which misleading or deceptive conduct can be determined, must involve the target of the misrepresentation or deception labouring under some erroneous assumption.
Further, particularly where the plaintiff, as in this case, is a regulatory body, which seeks compensation on behalf of members of a class that are said to have been misled or deceived, the conduct must be considered by reference to the class of persons likely to be affected by it and whether it is misleading or deceptive on the basis of whether a reasonable member of that class would be deceived or misled.
Evidence that persons have, in fact, been misled is not conclusive of the fact that the conduct was misleading or deceptive; but is admissible; and, subject to the conduct being tested against ordinary or reasonable members of the class of persons on behalf of whom damages are sought, may be persuasive. Further, as made clear in the joint judgment of Deane and Fitzgerald JJ in Taco, supra, it is necessary to enquire how and why the misconception, upon which the persons have acted, has arisen.
The terms of s 21 of the ACL render impermissible: all conduct that would be included within the term "unconscionable conduct" under the unwritten law, rendering a separate reliance upon s 20 of the ACL unnecessary.
The meaning of the term "engage in conduct" is the same as it has been described, for the purposes of s 18 of the ACL, earlier in these reasons for judgment.
Prior to 1 January 2012, the provisions of ss 21(5) and 21(6) of the ACL applied so as to limit the application of s 21 to unconscionable conduct in connection with supply of goods and services of a kind ordinarily acquired for personal, domestic or household use or consumption and which are not acquired for re-supply or to be used up or transformed in trade or commerce. The limitation was removed on 1 January 2012 and the only limitation that now apples, wholly irrelevant to these proceedings, relates to a supply to or acquisition from a listed public company: s 21(1) of the ACL.
By operation of s 21(3) of the ACL, a Court may have regard to conduct engaged in, or circumstances existing, before the commencement of the section, but may not have regard to circumstances that were not reasonably foreseeable at the time of the alleged contravention. Nice questions arise as to whether proceedings taken, claiming a contravention of s 21 of the ACL, in relation to conduct that occurred prior to 1 January 2012, but taken after 1 January 2012, is limited to unconscionability in the supply of goods and services of a kind ordinarily acquired for personal, domestic or household use or consumption and not acquired for resupply. This issue will be dealt with later in these reasons.
The comment of Gageler J, in describing the underlying background to the development of unconscionability as a cause of action and its relationship with the statutorily broader expression, is informative as to the principles to apply in dealing with a claim under the ACL. His Honour said:
"[81] 'Unconscionable' is an obscure English word which centuries of use by courts administering equity have transformed into a legal term of art. In Australia, the central concern of a court administering equity in identifying conduct as unconscionable has long been understood to be to relieve against a stronger party to a transaction exploiting some special disadvantage which has operated to impair the ability of a weaker party to form a judgment as to his or her interests.
[82] Section 12CA of the Australian Securities and Investments Commission Act 2001 (Cth) ('the ASIC Act') gives statutory expression to that equitable conception of unconscionable conduct. The section's prohibition against engaging in conduct in relation to financial services that is 'unconscionable within the meaning of the unwritten law, from time to time, of the States and Territories' operates to impose an additional statutory sanction on conduct that is unconscionable in equity. Suggestions that its reference to conduct that is unconscionable within the meaning of the unwritten law imports some more expansive and less precise denotation are contradicted by extrinsic material explaining the precise choice of statutory language and have been properly refuted.
[83] Section 12CB of the ASIC Act does something more. The section's prohibition against engaging in conduct in connection with the supply or possible supply of financial services 'that is, in all the circumstances, unconscionable' is expressed to be 'not limited by the unwritten law of the States and Territories relating to unconscionable conduct'. Those words make clear that the statutory conception of unconscionable conduct is unconfined to conduct that is remediable on that basis by a court exercising jurisdiction in equity. Furthermore, determination by a court exercising jurisdiction in a matter arising under the section of whether conduct is, in all the circumstances, unconscionable is required by s 12CC to be informed by the numerous considerations specified in that section, each of which has the potential to bear positively or negatively on the characterisation of conduct as conduct that is or is not unconscionable, and each of which must be taken into account if and to the extent that it is applicable in all the circumstances.
[84] Exactly what s 12CB does might be seen in different ways. The section might, on the one hand, be seen to confer statutory authority on a court exercising jurisdiction in a matter arising under it to develop the equitable conception of unconscionable conduct taking into account a range of considerations that are broader than those traditionally taken into account by courts administering equity and that include the considerations specifically identified in s 12CC. The section might, on the other hand, be seen to prescribe a normative standard of conduct, which standard a court exercising jurisdiction in a matter arising under it is required to recognise and to administer having regard to considerations which include those identified in s 12CC. Both perspectives on the operation of the section can be found, sometimes intertwined, in the case law. Examination of the legislative history and pre-history of s 12CB, much of which Edelman J helpfully refers to in his reasons for judgment, yields no real indication of a legislative intention to adopt one view in preference to the other.
[85] The difference between the perspectives is diminished when it is recognised that the Commonwealth Parliament can be taken to have understood that '[a]ny standard or criterion will have a penumbra of uncertainty under which the deciding authority will have room to manoeuvre - an area of choice and of discretion; an area where some aspect of policy will inevitably intrude', that '[t]he degree of vagueness or discretion will be affected by what is conceived to be the object of the law and by judicial techniques and precedents' and that, '[g]iven a broad standard, the technique of judicial interpretation is to give it content and more detailed meaning on a case to case basis'. The distinction between a judicially developed standard and a statutory standard developed judicially can in practice be a fine one.
[86] The difference in perspective nevertheless bears on how a court exercising jurisdiction in a matter arising under s 12CB goes about determining whether impugned conduct is, in all the circumstances, unconscionable. For reasons which will become apparent, I consider that identification of the correct perspective bears materially on the resolution of this appeal.
[87] The correct perspective, in my opinion, is that unambiguously adopted by the Full Court of the Federal Court in relation to materially identical provisions in Australian Competition and Consumer Commission v Lux Distributors Pty Ltd. The correct perspective is that s 12CB operates to prescribe a normative standard of conduct which the section itself marks out and makes applicable in connection with the supply or possible supply of financial services. The function of a court exercising jurisdiction in a matter arising under the section is to recognise and administer that normative standard of conduct. The court needs to administer that standard in the totality of the circumstances taking account of each of the considerations identified in s 12CC if and to the extent that those considerations are applicable in the circumstances.
[88] The Commonwealth Parliament's appropriation in s 12CB of the terminology of courts administering equity in the expression of the normative standard which the section prescribes serves to signify the gravity of the conduct necessary to be found by a court in order to be satisfied of a breach of that standard. 'Unconscionability', as has been long and well understood, 'is not a slight matter, and behaviour is only unconscionable where there is some real and substantial ground based on conscience for preventing a person from relying on what are, in terms of the general law, that person's legal rights'." (Citations omitted.)
I apply the approach of Gageler J in the last recited paragraph, whose reasons for judgment were part of the majority, and are consistent with the approach, extracted above, expressed in the joint judgment.
Other matters need noting. No party has put submissions on the issue of whether any one of the defendants is engaged in "trade or commerce". I use that expression to refer, in the foregoing, to the application of the ACL and also to whether the supply of the Marina Villas and the Marina Villa Sites were each a supply of goods or services in trade or commerce.
The lack of attention to the foregoing issue is understandable. Jonval was in the business of providing UMDs or Villas and Hacienda was in the business of running at least one Park. Mr Willmott was the controlling mind of each of Jonval and Hacienda and the controller of its conduct (and the person who directed its conduct at a practical level). Mr Willmott was "involved" in all contraventions: see s 3 of the ACL, as it defines "involved" and ss 239(2)(a) and 240(1) of the ACL in relation to "consumers".
Plainly, Mr Willmott was "knowingly concerned" and, therefore, involved in any contravention. Each of the purchasers/occupiers were misled (see later in these reasons) into an understanding that these Marina Villa Sites were available for "retirement living" (the advertisements and the oral representations) and could be occupied permanently and on a full-time basis.
A contract for the purposes of the ACL includes a licence to occupy. Further, the term "premises", where used in the ACL, includes a "vehicle" or a "vessel" and an "interest in land" includes a "right, power or privilege over or in connection with land".
Lastly, for present purposes, no attention has been given in submissions to the definition of "application law" in s 140 and the effects if any, of ss 140B and 140K of the Competition and Consumer Act 2010 (Cth). In my view, these provisions have no practical impact on these proceedings. To the extent constitutionally permissible they may have an effect on other proceedings, while the terms of s 140H of the Competition and Consumer Act expresses the legislative intent that the FTA and the ACL (NSW) apply concurrently with the Commonwealth scheme.
There was a discussion about parking availability and parking in undercover parking spots. Ms Timms' examination of the Villa revealed that the Villa was on concrete footings and the electrical and gas connections were hard-wired into the ground. Further, there were no wheels under the Villa.
After Ms Timms returned to her car, she had a conversation with Kirsty, which included words to the following effect:
Timms: "I am interested in Villa 8 but while my house is under contract, it has not been sold yet, so any purchase would be subject to that sale."
Kirsty: "Can you find out the settlement date and get me a copy of your contract and rates notice. That should be fine."
There was some attempt by Ms Timms to negotiate a lower price and she asked whether she was able to purchase it for $10,000 less than the asking price upon which she was referred to the possibility of purchasing one of the other homes and, when that was of no interest to Ms Timms, Kirsty informed her that she would need to take that request to the owner, who, apparently, was overseas at the time. I infer from other evidence that this was a reference to Mr Willmott.
In answer to a request about solicitors' papers or costs and searches, Kirsty informed Ms Timms that it was not necessary saying:
"You only own the Villa, not the land. You don't need a conveyancer, the Villas are not old, so you will be able to save on all those costs."
Ms Timms asked for the Villa not to be sold to another and Kirsty required a deposit of $2000 for that purpose. The deposit could not be afforded by Ms Timms. Ms Timms was provided with a brochure, which was in or to the same effect as the information on the website.
Eventually, Ms Timms settled on the sale of her own home on 5 May 2010 and made a firm decision to buy Villa 8. There were various emails, some of which dealt with the price, including an agreement that there would be a price reduction of $9,900. Eventually, Ms Timms bought Marina Villa 8 for $180,000.
It was necessary for Ms Timms to pay a deposit of $2000, for which purpose she attended Hacienda Park and met, again, with Kirsty. Ms Timms paid her the $2000 deposit in person. Ms Timms also gave her a letter from her solicitors, dated 20 April 2010, confirming the settlement date for the sale of the house as 5 May 2010.
Kirsty gave Ms Timms a number of documents for her to sign. Other than a sales agreement of which Ms Timms was given a copy, Ms Timms was unable to recall any other documents. Nor was she able to recall the exact conversations, but could recall certain things.
Ms Timms recalled that the price reduction was said to be confidential and no one else ought to know about it. Arrangements were made for Ms Timms to move into the park on 1 May 2010, but the balance of the payment for the Villa would not be paid until 7 May 2010.
On 22 April 2010, a letter was written from Tweed River Hacienda Holiday Park advising Ms Timms that her Application for Occupancy had been approved. Ms Timms did not recall completing an Application for Occupancy, but, she accepts, it may have been one of the documents signed by her of which she has no recollection.
When, on 1 May 2010, Ms Timms attended on the office and obtained the keys to Marina Villa 8 from a person identified as Helen, she was asked to sign further documents and, in doing so, dealt with another person named Tanya. She then signed the Occupation Agreement. Each of which is in evidence.
Ms Timms was given a copy of the Occupation Agreement and Schedules 1 and 2 thereto. She did not read the documents at the time and left the office with the keys and documents and moved into Marina Villa 8. She has resided permanently at Marina Villa 8 since that time and it is her principal place of residence.
The remainder of the purchase price, a balance of $178,000, was paid on 7 May 2010. This was paid by way of cheque from solicitors representing the Ms Timms in the sale of her home as part of the directions for disbursement of the sale of the home.
About a week after Ms Timms moved into the Marina Villas, Ms Timms commenced to read through the documents and, in particular, the document entitled "Occupation Agreement". In doing so, Ms Timms noticed that the Agreement indicated that she could not use the site for more than 180 nights per year. This concerned her and, as a consequence, she telephoned the Hacienda Park office and spoke to Helen, whom she had previously met. The conversation was in or to the following effect:
Ms Timms: "It's Barbara Timms, from Villa 8. I have been reading through my documents and noticed the Occupation Agreement I was given indicates that I can stay in the park for 180 days. This is not true I'm here permanently."
Helen: "It doesn't apply to you and it's not monitored anyway."
Ms Timms: "I'm going to put a line through it and through the Clause that I can't stay here for more than 28 days at a time."
Helen: "You don't have to worry, we don't monitor it."
Ms Timms: "Why isn't the green part completed?"
Helen: "It's okay that is only the occupant's copy it is not necessary on that."
Whilst Ms Timms was on the phone to Helen, and as stated to Helen, Ms Timms crossed out the line containing "180 days" under the heading "Additional Clauses" referring to 45.1 and 28 days at 45.2. The altered copy of the document is in evidence.
In about September 2010, Ms Timms discussed with John Hodson and Brian Hamilton the possibility of installing carports. In speaking with another resident of Hacienda Park, Ms Timms was advised that approval was required from the Tweed Shire Council and was given a contact, being Mr Alain Le Grande.
Ms Timms contacted Mr Le Grande; he attended the site and there was a conversation in or to this following effect:
Ms Timms: "What is needed for us to get carports?
Mr Le Grande: "You will need to get an engineer to draw up plans. You will also need to get the Park owners' approval and complete an application with Council."
Ms Timms advised some other Villa owners of the discussions she had with Mr Le Grande. There was disagreement amongst the Villa owners about what should be done and the plans were put on hold.
In about May or June 2011, Mr Le Grande and another, who introduced himself as also from Tweed Shire Council (the Council) visited Ms Timms and they had a conversation in or to the following effect:
Mr Le Grande: "I am interviewing all the owners of the Villas. When you came into the Park where you offered full-time or casual?
Ms Timms: "Permanent. I sold my house to move into this home."
Mr Le Grande: "Don't go ahead with the carport at this stage."
Sometime later in 2011, or possibly early 2012, according to Ms Timms, numbers were painted on the road outside the Marina Villas. The number 66 was painted outside the Marina Villa occupied by Ms Timms, notwithstanding that she had purchased Marina Villa 8.
On the advice of a person from the Affiliated Residential Park Residents' Association Inc, Ms Timms submitted an Informal Access Request to the Council, requesting access to the dwelling approval for Site 66 in Hacienda Park. That request is in evidence.
On about 8 March 2012, the Council replied to the request. That letter, which is in evidence, enclosed the section 68 Approval to Operate the caravan park and a copy of the community map for the Hacienda Caravan Park, showing Site 66 as a short-term site.
The letter records that the Council's official records has no approval for a construction of a dwelling on Site 66. That letter and the accompanying documents to which reference has been made, as earlier stated, is in evidence.
Ms Timms then, on or about 27 May 2012, submitted another Informal Access Request to the Council requesting the dwelling approval and/or application for the placement of a UMD for the site of Marina Villa 8 and/or Site 66. By letter dated 6 June 2012, the Council responded to the request.
The response letter, which is in evidence before the Court, refers to and encloses an undated application for installation of a UMD on Site 66, which was refused on 24 October 2005; a reference to the earlier letter of 8 March 2012, see above, reiterating that a search of Council's records has failed to find any approvals for construction on Site 66; and, that a search of Council's records failed to find any approvals for construction of a dwelling on Site 8.
The letter also included a copy of a letter, dated 19 March 2007, addressed to Mr John Willmott (a defendant in the proceedings) at Hacienda Caravan Park, in regards to section 68 Approval to Operate. Relevantly, the Approval to Operate lists a number of sites as short-term sites, being: site numbers 1 to 40, 42, 43-53, 57, 62-72, 78, 79, 84, 85, 92-94, 101, 102, 107, 108, 116-122, 133-135, and 140-153. There are a number of conditions imposed upon the approval, which, at this stage, it is unnecessary to recite or to summarise.
The Marina Villas are numbered 39, 40, 42, 53, 62, 64, 66, 68 and 71 on the plans. The 8th Marina Villa from the west is number 66 and is the Villa otherwise referred to as Marina Villa 8. It, together with the other nine villas in that group, sits opposite the private harbour and away from the other units or campsites in Hacienda Park. None of those Marina Villas are listed as permanent, full-time or long-term sites in the Approval Letter of 18 September 2011.
During the course of living at Marina Villa 8, Ms Timms has undertaken a number of renovations that, she testifies, would not have been undertaken, if she were to have been aware that she could not live at the Villa site permanently. Those payments include $1,818 in about 8 March 2011 for awnings to provide shade; $530 for a permanent cupboard on the veranda, which was expended on or around 12 March 2014; and payment of $350 for materials to build a retaining wall in about September 2014.
During the time that Ms Timms has resided in Marina Villa 8, she has paid site fees continuously, which are debited from her bank account. Those fees were $175 per week, initially, and, at the time of swearing her Affidavit, had moved to $461.50 per fortnight. She received Centrelink rent assistance on the basis that Marina Villa 8 is her permanent home (a fact that Hacienda or Mr Willmott confirmed or was required to confirm).
Ms Timms attests to the fact that she would not have purchased the Marina Villa 8, if she had thought she could not live there on a permanent basis. She believed, on the basis of the material on the website and the discussions she had with one or other of the defendants' representatives, together with the appearance of the Villa and its permanent features such as concrete footings, plumbing, sewerage and electricity, that the sale of Marina Villa 8 was a sale that allowed her to live there permanently and use Marina Villa 8 as her principal place of residence. Further, she would not have undertaken the renovations, referred to above, if she were aware of any other arrangement than permanent residence.
Ms Timms' son, Brian, and his former wife, Ms Hayter, also swore affidavits which, to the extent that each was involved in transactions or discussions, corroborates the evidence of Ms Timms. Further, Ms Hayter, in cross-examination, accepted that Ms Timms did not show her the Agreements, but had a clear recollection that she asked Ms Simons three times about permanency. She did so because of the name "Holiday Park" and wanted to make sure that Ms Timms could live permanently at the Park, as Ms Timms wanted.
In cross-examination, Ms Timms made it clear that were she not to have purchased Marina Villa 8 she would have looked for another suitable home, but she was unaware of the precise cost to her of that home.
Notwithstanding her statement as to awareness when in the witness box, her Affidavit of 26 May 2017 annexes advertisements for accommodation, other than Marina Villa 8. One example of that was a unit (5/156 Pacific Drive Port Macquarie) at Shelly Beach Resort, which was listed for sale at $195,000, some $6,000 more than was paid for the Marina Villa. There are examples of other advertisements for the sale of other UMDs.
Predominantly, the cross-examination was directed at Ms Timms' enjoyment of the expected benefits of living in Marina Villa 8 on a permanent basis. Ms Timms did not suggest that she missed out on anything that she otherwise expected, if the land she had obtained were permitted to be the subject of permanent residency.
While the Villa is described as "movable", Ms Timms maintains that the dwelling is not movable, because it does not have wheels and it is permanently affixed to the land. Further, as far as she can tell, not being an expert, it could not be moved in one piece. No evidence was adduced to the contrary.
In cross-examination, she also clarified that she understood that she was to be on the land permanently, as long as she was there, or for as long as she paid rent and had not considered what would happen if the caravan park had closed down. Ms Timms had never stayed in a caravan park before.
Ms Timms was definite that Kirsty, a representative of Hacienda and/or other defendants, had said that the residence was "Council approved for permanent residence", but is unclear as to the conversation in which that occurred. Any difference between the terms of a conversation in the Affidavit and in a previous statutory declaration as to the details of the conversation relates, predominantly, to the inability of her to refer to previous emails at the time of crafting the document.
Brian Timms, Ms Timms' son, corroborated her evidence to the extent of his knowledge. He agreed, in cross-examination, that his mother enjoyed living there and that, he thought, she would want to continue to do so.
Ms Sorenson and her husband were represented by a solicitor and the material provided by the solicitor is before the Court. Michael Singh Lawyers acted on behalf of Ms Sorenson and her late husband in respect of the purchase of Marina Villa 6 at the Hacienda Holiday Park. The letter confirming that representation is before the Court.
On or about 27 October 2010, Michael Singh Lawyers provided a summary to Ms Sorenson and her husband of the Sale Agreement. That summary is before the Court.
It is important to note, at this time, and greater attention will be paid to the issues later in these reasons the judgment, that the Sale Agreement, was one only of the documents that were required to be executed. Over and above the Sale Agreement, there was executed an Occupancy Agreement.
Given the terms of the letter of 27 October 2010, and the advice as to what should be prepared and what it should contain, it seems that an Occupancy Agreement or the Occupancy Agreement was not provided to the solicitor or to Ms Sorenson or her husband at that time. Indeed, the evidence before the Court is that the solicitor was provided with a completed Occupation Agreement, for the first time, on 28 February 2011, which was approximately one week after the purchase of the UMD, a receipt for which was provided on 21 February 2011.
As stated, the advice from Michael Singh lawyers included an advice as to what should be contained in an Occupancy Agreement that was to have been provided by the defendants or one of them. No advice was provided as to the terms of any Occupancy Agreement that had been sighted.
The Occupancy Agreement that Mr and/or Mrs Sorenson were provided and executed, on attendance at Hacienda Park, was a standard form Occupancy Agreement. Amendments sought to one or more documents were peremptorily rejected and neither Hacienda nor any other defendant were prepared to negotiate the terms of the contracts: see s 22(2)(j)(i) of the ACL.
The Occupancy Agreement is poorly drafted. Relevantly, as was the case with Ms Timms and the other purchasers/occupiers, the Occupancy Agreement contained a Clause 45 in the following terms:
"Clause 45 Occupation of the Site
The occupant agrees
45.1 During the course of a year not to use the site for more than the number of nights set out in the Schedule 1;
45.2 Not to use the site for any continuous period of greater than the number of nights set out in Schedule 1 except with the prior permission of the park owner;
45.3 If the site is occupied for a period greater than the number of nights permitted under Clause 45.2 to pay the occupation fee set out in schedule 1"
There is then a separate document with the heading "Occupation Agreement Schedule 1 & 2" which, according to its terms is "to be read in conjunction with attached Occupation Agreement [Green]". That document described as Schedule 1 & 2 is in three parts: the first part is headed "Introduction"; the second part is headed "Part 2 & 3-Occupation Fees and Charges, Rights & Obligations"; and the third part of the page is entitled "Additional Terms". Under the heading "Additional Terms", there are the following entries:
"45.1 One hundred and eighty
45.2 Twenty eight"
While it is unclear from the document whether the "Additional Terms" are part of Schedule 1, each of the parties (and the purchasers/occupiers) seems to have assumed that the reference to 45.1 is a reference to Clause 45.1 of the green Occupation Agreement and the reference to 45.2 is a reference to Clause 45.2 of the green Occupation Agreement. The foregoing cross-reference is not expressed in the document itself. Nor does the document make clear whether the "Additional Terms" are part of Schedule 1 or Schedule 2.
As a consequence of the foregoing, leaving aside for present purposes the effect of the subsequent conversation with Ms Timms purporting to alter the reference to 180 and 28, the written document limited each of the total number of nights in any one year and the duration of every continuous period of occupation.
The Sale Agreement was executed by Ms Sorenson and her husband and provided to the defendants, or one of them, on or about 4 November 2010, and, on or about 12 November 2010, the purchasers' solicitors asked Ms Sorenson and her husband to prepare a bank cheque for the deposit of $9,500.
On 21 February 2011, the sale and occupation was completed. Ms Sorenson and her late husband paid the balance of the purchase price of $180,400 by cheque to Hacienda. She delivered them personally and received the keys.
The new occupants made improvements to the Marina Villa after moving in. These included the building of a pantry; linen and broom storage; an enclosed deck; installation of shutters, blinds; and a small roof extension. They also replaced the stovetop; the hot water system; installed ceiling fans, a ventilator and a dishwasher.
In or about April or May 2011, Ms Sorenson's late husband received a visit from an Officer of Tweed Shire Council, Mr Alain Le Grande. As a consequence of the conversation with that Officer, as relayed by Ms Sorenson's late husband to her, Ms Sorenson became suspicious of the status of the Villa and whether it was Council approved or deemed to be a permanent dwelling.
Later, in or around June 2011, a woman, Cindy Gilbert, from the Affiliated Residential Park Residents' Association, contacted Ms Sorenson's late husband and had a conversation with him, which was relayed to Ms Sorenson in the following terms:
"Sandy said that our Villa is on a short-term site. I told we were permanent residents and we bought the Villa on that basis."
A little while after that conversation, Ms Gilbert again visited the Marina Villa and provided Ms Sorenson and her husband with a letter, which is before the Court.
The letter is a copy of a letter from the Council to Hacienda Caravan Park, relating to the approval to operate and the long-term and short-term sites, which is a copy of a letter to which previous reference has been made.
In or about October 2011, a Hacienda Park worker painted the numbers "62" outside the Marina Villa. The letter provided to Ms Sorenson by Ms Gilbert excited a concern in Ms Sorenson and her husband and they decided to investigate further. An Application for Informal Access Request to Information to the Council was made and a reply received on or about 8 March 2012.
Ms Sorenson attests to the fact that had she known that Marina Villa 6 was not Council approved for permanent living and that they were not able lawfully to live in the Marina Villa permanently, then she and they would never have purchased the Villa nor entered into the Occupancy Agreement. Notwithstanding the lack of approval and the short-term nature of the site on which the Marina Villa is located, Ms Sorenson has never been asked to leave the Marina Villa, nor prohibited from occupying it for any length of time.
In cross-examination, Ms Sorenson confirmed her evidence-in-chief that the firm of solicitors had acted for her on the purchase and also assisted in the Occupancy Agreement. Further, she is now aware that there is an occupancy limit under the Agreement of 180 days per year, but that was not brought to her attention by any one of the defendants during the course of the process of purchasing the Villa and/or the Marina Villa site.
Ms Sorenson, in cross-examination, also confirmed that evidence, which had been given in chief, that, despite the apparent limit of 180 days occupancy in any one year, no one had spoken to her to the effect that she or they had exceeded that period of time. Nor, to her knowledge, had they spoken to her late husband.
In answer to a question in cross-examination, Ms Sorenson said that she understood that the Agreement was a generalised agreement that applied to both short-term and long-term occupancy sites and it was directly contrary to everything that had been represented about their capacity to move in and live permanently. The clause relating to the 180 day limit (or the 28 day continuous limit) was noticed by them (i.e. Ms Sorenson and her husband) late in the purchase process and they were unable to get in contact with anyone to ask about it.
Ms Sorenson agreed that she had lived in the property full-time since she purchased the Villa and that she would not have been aware of the problem, if she had not spoken to someone from the Council. Until the time she spoke to someone from the Council and/or Ms Gilbert, she would have been content with the arrangements in respect to the Villa.
Ms Sorenson also agreed that what she had bought, outright, was the mobile home, not the land and that she could have the structure moved or leave it to family members. It was not suggested that Ms Sorenson had any expertise that would qualify such opinions.
The terms of the Occupation Agreement require the approval of the park owners for the Villa to be sold (Occupation Agreement, cl 23) and require the maintenance of the site and the movable dwelling in the same condition as it was purchased (Occupation Agreement, cll 47.1; 47.2; 47.4; 49; and 50, or a combination thereof).
Ms Sorenson also conceded that the price she paid was reasonable, being the price for the structure, but in re-examination clarified that she would not have paid that price, even for the structure alone, if she had been aware that she was not able to live in it as a full-time resident.
Ms Valerie Richardson affirmed an Affidavit that essentially corroborated some aspects of the evidence of Ms Sorenson. It was Ms Richardson who had first alerted Ms Sorenson to the availability of the Marina Villa sites at Hacienda. She scanned and emailed Ms Sorenson a copy of the advertisement. Ms Richardson and Ms Sorenson were friends and Ms Richardson had spoken to Ms Sorenson about her "house hunting".
Ms Richardson remembered the advertisement as a particularly small one which referred to "waterfront villas" and the advertisement may not have been in the newspaper but in a magazine. She had assumed, at the time, that they were permanent villas and that the price advertised was reasonable compared to other properties on the coast.
She agreed it would have been an incredibly good price for freehold land on the waterfront, but she knew it was a caravan park. She did not turn her mind to whether rent would be payable for the site, but now knows it to be the case.
Ms Sorenson did not, at any stage in 2010, express concerns to Ms Richardson that the property was only capable of occupancy for 180 days per year or for 28 days continuously. She indicated, very strongly, that it was a place to which they [Ms Sorenson and her late husband] could retire and it was permanent living. Further, knowing that the property is not a permanent arrangement had changed Ms Sorenson's outlook on the property. At no time, did Ms Sorenson indicate that she knew it was not a permanent living situation in 2010 or at any other time, prior to her being appraised of the Council requirements.
Eventually, Mr and Mrs Hannah decided to purchase Marina Villa 7. They did so because they considered that, even though it was a lot more expensive, that expense related to its position and it would have a better re-sale value, if, in the future, they needed to sell it.
On 2 November 2010, Mr and Mrs Hannah went into the Hacienda Park office and paid a $5,000 deposit to secure Marina Villa 7. Mr Hannah again questioned Peter Simons about the ability to live in the Marina Villa permanently. He did so because he was worried that, as the park was on prime waterfront real estate, the owner might sell the park to a developer and they may not be able to live there permanently. The conversation included works the following effect:
Percy Hannah: "I just want to make sure this is a permanent site before I pay this deposit and agree to purchase the Villa. We have lived in parks before and we will be living here permanently."
Peter Simon: "Yes, they are permanent. The park will be here for many years to come and there are more new homes being built throughout the park and the owner would not be doing that if he did not have a long-term plan to keep the park operating."
After being assured, with that conversation, and believing that their purchase would be "secure living", the $5,000 cash deposit was paid. They were given a receipt, which was the only paperwork that the Hannahs received.
On 2 November 2010, the Hannahs were asked to complete an "Application of Occupation of Site Form", which they completed and signed on that day. They were not given a copy of the form at the time.
On 1 December 2010, the Hannahs went to the Hacienda office and paid the remaining amount of $184,900. It was paid by bank cheque. The receipt they received, like the receipt for the deposit of $5,000, was a receipt from "Tweed Relocatable Holmes". Again, this was the only paperwork that they received.
A little while after moving in, the Hannahs sought permission to place a timber border along the top of the bank and plant a hedge along it, together with levelling off the ground. This was done in order for the site to be safer for their grandchildren. Ultimately, that permission was granted and the works were undertaken. The cost of the work was around $1,500.
In a similar fashion to the other residents of the Marina Villa, they were eventually informed by Council officers, initially indirectly, that the Marina Villa was not permitted to be a permanent residence. They met and spoke with Mr Alain Le Grande from Tweed Shire Council. The information provided by Mr Le Grande was in or to the same effect as provided to other occupants.
The terms of the conversation with Mr Le Grande are given, or words to the effect given, and are before the Court. Evidence is provided by both Mr and Mrs Hannah to the effect that there were resident meetings and a request was made by them to the Hacienda office to obtain a copy of the Sales Agreement and Occupation Agreement.
They made the request on a number of occasions and, eventually, the park owner provided them with a copy of the green Occupation Agreement. They did not receive a copy of the Sales Contract. After receiving the Occupation Agreement, they read that, according to the "Additional Terms", they were only permitted to occupy the site for 180 nights in a year. This was the first time that either of them had become aware of this condition of occupation and this was after May 2011.
On 26 May 2012, Mr and Mrs Hannah completed an Informal Access Request to Tweed Shire Council, seeking a copy of an Application for the Placement of an UMD on Site 64 or Marina Villa 7 at Hacienda, and, on 6 June 2012, Mr and Mrs Hannah received a letter from the Council advising them that Council had no record of any such approval.
Both Mr and Mrs Hannah, in their separate Affidavits, make it clear that they would not have purchased Marina Villa 7, if they had known that it was not Council approved for permanent living. Nor would they have carried out the improvements to the site in those circumstances.
Mr and Mrs Hannah had been paying site fees in advance, continuously since they moved into Marina Villa 7. Apart from the improvement of the site, to which earlier reference has been made, other improvements were made, including the installation of two fans; the installation of wardrobe shelving in the bedrooms; the installation of a clothesline; and the installation of blinds and glass panelling on the veranda.
Mrs Hannah would have no idea how to move the building, if it were permissible, but does know it would not be simple because it has footings and is connected to the main power and other services.
Lastly, in relation to the NSW Civil and Administrative Tribunal (hereinafter "NCAT") proceedings in which Mrs Hannah had provided a document stating that she was living in the Marina Villa 365 days a year, she received a letter in response (Exhibit J).
The Statutory Declaration of 18 May 2016 attested to the fact that Mr and Mrs Hannah lived permanently at their Marina Villa. The letter (Exhibit J), dated 1 July 2016, asserts that the Statutory Declaration was the first occasion that Mr or Mrs Hannah made a statement to the park owner that they lived there permanently.
The letter refers to the governing statute and asserts that Mr and Mrs Hannah are in breach of the terms of the Occupation Agreement. It requests that they, seemingly forthwith, comply with the terms of the Occupation Agreement. Further, the letter threatens a Termination Notice, if the permanent occupation of the site were to continue.
The letter from Tweed River Hacienda Holiday Park, or on its letterhead, which is the trading name for Hacienda, then makes an offer to settle the NCAT proceedings. It is unnecessary, and possibly inappropriate, to repeat the terms of the offer. Exhibit J was admitted, without objection.
On that day they signed the Application for Occupation of the site and gave it to Kirsty Simons. The Application for Occupancy is before the Court.
Shortly thereafter, the Hamiltons received a letter approving their application for residency, which letter is before the Court. They visited the Park again to sign the Sale Agreement for Marina Villa 5 and arrange payment of the deposit of $9,500.
The Sale Agreement is before the Court, but when it was initially signed it was not dated. The best recollection of the Hamiltons is that it was shortly after 7 May 2010. Full settlement of the purchase occurred in late May 2010 or early June 2010. At that time, Mr and Mrs Hamilton signed the Occupation Agreement.
Arising from an application to have a telephone landline installed in the Villa, Mr Hamilton became suspicious of the legality of the Marina Villa. They took up permanent occupation in October 2010 and, during their occupation of Marina Villa 5, travelled a significant amount.
On 3 March 2012, the Hamiltons sent an email to the Council requesting details of any dispute in relation to their Villa. The Council replied on 9 March 2012 indicating they had no records of any such dispute.
On 16 June 2012, the Hamiltons made an Informal Access Request to the Council, seeking information relating to the dwelling approval of Site 57 or Marina Villa 5 at Hacienda Park. Shortly thereafter, namely, 20 June 2012, the Council responded and included all the information relating to dwelling approval of their Villa.
Sometime later, boundary markings were painted, which, according to the Hamiltons, marked out a lot size that was smaller than had been indicated to them in the conversations with Kirsty Simons. Further, as a result of Mr Hamilton's understanding of the regulations relating to caravan parks, raised suspicions that the legal footprint of their Villa was greater than that allowed in caravan parks, namely, to his understanding, 66% of the total site size.
Further again, the number 57 was recently painted onto the roadway outside the property. The Marina Villa that they purchased had always been numbered "5".
During the course of their occupancy of Marina Villa 5, the Hamiltons have undertaken a number of renovations at a total cost of over $19,000. Those costs include: landscaping; technological improvements; kitchen renovations, including installing the fridge, dishwasher and insinkerater; plumbing improvements; electrical installation for a TV outlet and the mounting of a TV onto the wall; and installation of plantation shutters.
Currently Mrs Hamilton lives in South Australia. In the course of examination-in-chief, Mrs Hamilton was taken to a diagram of a dwelling that was said to be Site 57, which she made clear was not the layout of her Marina Villa and, in relation to the site diagram, was not the site of her Marina Villa at the Hacienda Park. This can be ascertained, she said, because of the position of Sixth Street, which is nowhere near her Marina Villa.
In cross-examination, Mrs Hamilton made clear that she would never have bought the Marina Villa if she had known it did not have Council approval and would have bought elsewhere. She had understood that they were buying a retirement villa, but realised they were not buying the land. She understood that if the site fee were paid the place was yours and you could continue to live there. Mrs Hamilton accepted the proposition, put to her in cross-examination, that she could move the UMD if she chose.
Hacienda Park is no longer Mrs Hamilton's principal private place of residence, as she lives in South Australia to be closer to her family. She returns to the Hacienda Park at various intervals.
At the time of giving evidence, Mrs Hamilton spent approximately 80% of her time in Adelaide, but as they were no longer required as much as they were initially, it was their intention to move back to Hacienda Park, but is unsure of whether that is possible because of the issues as to the full-time residents that have been brought to her attention.
Notwithstanding the terms of the Occupation Agreement, no one has tried to prevent her from using the premises for 365 days in any year, except for a veiled threat relating to NCAT proceedings.
On 3 August 2012, Mr Denley and his daughter, together with her four children, drove to Hacienda Park and were provided accommodation for the inspection. They were accommodated at Marina Villa 1, which is a two-bedroom Villa.
The location of the site was extremely appealing and Mr Denley asked Kirsty Simons whether the Villa was for sale. Further, during the course of that conversation Mr Denley asked whether the Marina Villa was transportable, to which Kirsty Simons replied: "no, they are concreted to the ground". Mr Denley inspected the Villa and noted that it was on concrete footings, was connected to plumbing, gas and sewerage and had hard-wired electricity. It appeared to him to be a permanent residence.
There was negotiation about purchase and in particular the purchase of Marina Villa 1, which was not available. Further, there were issues about bank finance for the Marina Villa in circumstances where the land was not being purchased and the applicability of fees. Mr Denley was informed by Kirsty Simons that the fees for the Marina Villa were higher than the $158 of which he was previously informed were the fees for Hacienda, generally. The Marina Villas were $199 occupancy fee.
As a result of the negotiations, Mr Denley purchased Marina Villa 2 for $170,000, of which he provided $130,000 and Mr Willmott financed him for the further $40,000.
The Finance Contract was read by Mr Denley; there were corrections to be made; and the Contract provided for vendor finance of $40,000 at 12% per annum over seven years, with a repayment per month of $162.61. The Vendor Finance Agreement with which Mr Denley was provided had already been executed on behalf of Tweed Locatable Homes and Mr Denley was provided with a purchaser's copy of the Sale Agreement and a receipt for the payment of the deposit.
On 10 August 2012, Mr Denley received his approval for occupancy, although he did not recall signing an Application for Occupancy at the time.
On 17 August 2012, Mr Denley hand-delivered a check of $4,000 and obtained a receipt. On 21 September 2012, he hand-delivered a cheque for $120,000 to Kirsty Simons' husband, Peter Simons, as Kirsty was unavailable.
During the meeting with Peter Simons on 21 September 2012, Mr Denley was provided with an Occupation Agreement to read and sign, which he did before signing the Occupation Agreement, Mr Denley noticed a reference to 180 nights and the necessity of pay for visitors and had a conversation with Peter Simons to the following effect:
Bruce Denley: "What's this about 180 days and only staying in the Villa for a certain number of consecutive days. I want to live here permanently; I have nowhere else to live. Can we strike it out?"
Peter Simons: "Don't worry about that. It's only there so we can remove misbehaving residents. It doesn't apply to people that are permanent residents and people that abide by the laws of the Park".
Bruce Denley "At .4 and also the clauses at 9.3 and 4, it will be no good if my daughter and grandchildren come to visit because I don't want to be paying for each person. Can you delete that?"
Peter Simons: "No we can't. We need that even if we need to get rid of the riffraff visiting the park so it needs to be in. We have never charged anybody."
On the basis of the foregoing representation and/or conversation, Mr Denley agreed to sign the document and did.
A second Affidavit confirms the effect of the conversation immediately above and raises issues associated with the vendor finance. Apparently, the vendor finance requires the payment of a lump sum of $30,000 at the conclusion of the seven-year period, which requirement was unknown to Mr Denley. He attests to the fact that he would not have signed the vendor finance in such circumstances as he had no capacity to raise a lump sum of $30,000 in the seven-year period. Mr Henley has not paid the repayment on the loan since 16 October 2014, when he became aware that he was unable to live in the Villa on a permanent basis. He had, at the time of giving evidence, been given no Default Notice.
Again, in relation to Mr Denley's Villa, a different number has been painted on the outside in front of his Villa, being the number 40.
In cross-examination, Mr Denley confirmed that the paperwork in relation to the occupation and sale was provided to him over the counter and he was denied the capacity to take it away. He was provided it in a back room to read and was interrupted from time-to-time and felt under pressure to hurry the process. Mr Denley also confirmed the conversation with Peter Simons about the 180 days' residency and the charge for other persons staying overnight.
Mr Denley confirmed that he had never been charged for having visitors and that the 180 day maximum stay rule had never been enforced. Further, in cross-examination he confirmed that he had understood that he was purchasing a two-bedroom Villa on the Tweed River as a permanent residence for his retirement.
Mr Denley was aware he was not buying the land. This had led him to the view that while the park continued to operate, no one would interfere with him keeping his Villa on the site and he had been reassured by Kirsty Simons that the owner was not intending to sell the place. He understood that the right to occupy was not irrevocable and that his idea of a permanent place of retirement was that it was permanent so long as he paid the rent; abided by the rules; and supposed the caravan park continued to operate and be licensed by the Council.
There were discussions about possible changes including the building of the fence between villas; the building of a small sheds to accommodate the laundry; whether they could rent out the villa when they were not using it; and the building of a pontoon. Ms Simons represented that they could build the shed as long as it matched the Villa and that the pontoon, if the park owner agreed, would need approval, seemingly from the Council. The parties agreed to meet again on 12 October 2009.
On 12 October 2009, the Hodsons returned and met again with Ms Simons at Villa 10. This was for the purpose of having a final inspection and to obtain a copy of the contract. John Hodson asked for a copy of the contract to which Ms Simons replied: "we don't give out contracts; you can sign it tomorrow."
John Hodson commented that he would not then be able to show it to his solicitor, whereupon Ms Simons replied that it was "just like buying a car. Your solicitor does not need to read it. I will need you to sign an Application for Occupation of the site. This is to ensure you are suitable to live in the Park. It is a mere formality though."
Each of Diana and John Hodson signed the Application for Occupation of the site and did not receive a copy of the contract. The next day, 13 October 2009, Ms Simons visited the Hodsons at their home at Surfers Paradise, at which time each of them signed the Sale Agreement and they paid a deposit of $9,500. A receipt was provided, but the documents, or copies of them, were not. The Application for Occupation, the Sale Agreement and the receipt are before the court.
By letter dated 23 October 2009, Hacienda, on the letterhead of Tweed River Hacienda Holiday Park, wrote to the Hodsons indicating that the Application for Occupation had been approved.
On 26 October 2009, John and Diana Hodson attended Hacienda Park and settled the purchase by the payment of $180,400. Hacienda gave the keys to the Hodsons as well as paperwork, which included the Occupation Agreement. When Diana Hodson read the Occupation Agreement, which she had just been provided and asked to sign, she did not consider that she could sign it, because it referred to a stay of only 180 days in any one year. Each of them attest to the fact that this was not what they agreed to when they purchased the UMD on the basis that it was part of the site. The Occupation Agreement that was provided to them remains unsigned by them.
They were informed by the Council that the Villa they had purchased, Villa 10, did not have Council approval for permanent occupation and there is a restriction on living in the home for more than 180 days. During the course of the discussions, prior to the purchase of the UMD, and prior to taking up residence in Hacienda Park, John Hodson had a number of communications with Mr Willmott. During the course of that communication, Mr Willmott approved the building of the laundry and a shed; told them they could rent out the Marina, but if a permanent resident was to move in, such resident would have to be approved as residents in the Park by the park owner; and that the pontoon would be approved by the park owner as long as it matched the existing pontoon and the purchasers/occupiers of the first three Marina Villas did not object.
In relation to the pontoon, Mr Hodson was informed that Council would need to approve it. Further, approval was given to build another fence.
Some of the communication is evidenced by emails, which are before the Court. Some matters raised by Mr Hodson with Ms Simons were said by her to be required to be referred to the "park owner". It was the understanding of Mr and Mrs Hodson from that which was said, but the terms of which are no longer remembered, that the reference to the park owner was a reference to Mr Willmott.
The issues with the Occupation Agreement were raised with Kirsty Simons and with the Office Manager, Helen. Helen assured Mr Hodson that he should not worry about the issues that she would "get the changes made and get back to you". The Hodsons never received a copy of an amended document.
The Hodsons made the approved renovations, but because of the ongoing dispute did not move into the Marina villa.
In about May 2011, discussions occurred between John Hodson and John Pestridge of Marina Villa 9, relating to plans for the addition of carports. These discussions occurred with Ms Timms, Mr Pestridge and Mr Hannah.
Shortly after the submission of the plans, Mr Hodson found the business card of Mr Alain Le Grande of the Council on his door. They met and the conversation occurred the effect of which was that Mr Le Grande asked if Mr Hodson had been told that he could live permanently at the Marina Villa when he purchased, to which Mr Hodson replied in the affirmative. Upon that information being provided, Mr Le Grande advised them that the Villas had not been approved but that the Council would not be "kicking anyone out". Mr Le Grande said the problem was not with the occupants, but with the park owner.
In cross-examination, Ms Hodson made clear that the Villa had been purchased by the family "superfund trust", but not as an investment. It had always been the plan to move in so as to downsize and retire on the Villa. She did not understand that she was purchasing the land but they were buying the building that sat on the land and were paying park fees as a kind of rent.
On being asked whether, in using the term "permanent" in her Affidavit, Ms Hodson understood that no one could guarantee the Park would continue to operate forever, she replied that "we were told that we could use them permanently, we were never told anything otherwise than that [or] there was an issue with the Park, we were never told to revise that in any form". Whether the Park would stay there for ever, she said, never came into question.
Each of Mr and Mrs Hodson made clear that if they had not bought the Villa, which they would not have done had they known of the permanency issues, they would have bought somewhere else. Otherwise, Mr Hodson's evidence in cross-examination was consistent with and corroborated the evidence of Mrs Hodson.
Mr Hodson agreed that no one checks, to his knowledge, the number of days that he is in occupation, including whether he or his wife had been there for more than 28 days consecutively. He has not encountered any problems with restriction on occupation because he hasn't been living at the Villa. He has not been living at the Villa because of the issues associated with permanency and he has been renting it out.
Ms Simons gave Mr Pestridge a brochure for the home, which is before the Court. Mr Pestridge then, on request, completed an application to be approved as a resident. During the exchange with Ms Simons, she pointed out a woman standing on the veranda of Villa 8 and said to Mr Pestridge words to the effect that "that's Barbara; she's a widow and has retired here too".
On 8 October 2010, Mr Pestridge received the letter approving his occupancy of Hacienda Park.
On 11 October 2010, Mr Pestridge met with Peter Simons in the Hacienda office and gave him the bank cheque for the deposit, being an amount of $7,000 for which a receipt was given. Peter Simons said words to the effect that: "the park owner has agreed to your permanent living".
Apparently, on application from Mr Pestridge, bank finance was refused on account of the fact that Mr Pestridge would not own the land upon which the Villa was placed as a result of the transactions taking place. Between 11 and 21 October 2010, Mr Pestridge telephoned Peter Simons and met with him, during which there was a conversation that included the following exchange, or words to that effect:
John Pestridge: "I'm having a lot of trouble getting finance. The banks just won't lend on these types of houses."
Peter Simons: "Well, I'll put it to the owner, he's a very nice man and I'm sure he'll vendor finance you."
John Pestridge: "OK thanks."
Peter Simons: "I'll put it to the owner and give you a call later." [The reference to the owner was to Mr Willmott.]
On or about 19 October 2010, Mr Pestridge received a telephone call from a woman, who identified herself as Tanya from Hacienda, who informed him that the finance had been approved. She also told him that the bank cheque for that which was available to Mr Pestridge should be made out to Tweed Relocatable Homes.
On 20 October 2010, Mr Pestridge withdrew $112,100 from the National Australia Bank and went to Hacienda Park and gave that cheque to the woman who identified herself as Tanya. Apparently, the bank cheque for $112,100 was made out to Hacienda Holiday Park and Tanya informed Mr Pestridge that it was made out to the wrong party.
Tanya then rang the bank and they agreed to re-write the cheque without a fee. Mr Pestridge retrieved the new bank cheque from the bank and returned to Hacienda Park and gave it to Tanya.
When the cheque was provided, Tanya gave Mr Pestridge "a lot of paperwork to read and sign", which included the Sales Agreement, and the Occupation Agreement. The documents were small print and consisted of a number of pages which made it impossible or very difficult to read and even more difficult to understand.
Mr Pestridge did not read the documents in detail at the time, but did read a note relating to the occupation of the Park for 180 days under cl 45.1 of the Additional Terms and consecutively, in one period, for a maximum of 28 days under Additional Terms cl 45.2.
Upon reading those provisions, Mr Pestridge had a conversation with Tanya in or to the following effect:
John Pestridge: "What's this about only occupying for 180 days, and 28 days, and why is it for a fixed term when I'm here permanently?"
Tanya: "Don't worry about that, we don't police it. You can stay as long as you like. It's only for people with holiday units.
John Pestridge: "OK; fair enough. Do you think I need to have this looked over by a solicitor?"
Tanya: "No, it's only going to cost you money for nothing. You are not buying the land; the home is only a couple of years old. You'd only be wasting your money."
Mr Pestridge signed the Sales Agreement and the Occupation Agreement. Upon signing the documents, Peter Simons came out of his office and congratulated Mr Pestridge on the basis that he was now a local resident.
A further amount of $25,000 was paid towards the balance of the money owing on the purchase of Marina Villa 9. This was paid on 25 March 2011.
Since occupying Marina Villa 9, Mr Pestridge's bank account has automatically deducted weekly payments to Jonval, who, on Mr Pestridge's understanding, are the proprietors of Tweed Relocatable Homes, as a consequence of the vendor finance arrangement. Notwithstanding those payments and notwithstanding the conversation with Tanya (who, by this stage, Mr Pestridge knew was Tanya Hickling), no documents relating to the vendor finance had been received by Mr Pestridge.
In about 2011 or 2012, Mr Pestridge met with Peter Simons and enquired about the possibility of erecting a carport. In relation to that enquiry, Mr Pestridge was referred to the Council.
On visiting the Council, he was referred to Mr Alain Le Grande, who then met Mr Pestridge at Hacienda Park. On making the enquiry of Mr Le Grande, Mr Pestridge was referred to an engineer and discussed with other occupants whether they also wanted to build a carport each.
Prior to submitting plans, Mr Pestridge spoke with Peter Simon and John Willmott, during which John Willmott suggested some changes to the carport design and also approved an extension to the veranda.
Subsequently, Mr Pestridge spoke to Mr Le Grande when the latter was visiting the Park and explained to him the alterations that he wanted. Initially, Mr Le Grande replied that Council would approve the veranda as long as he ensured that the site did not occupy more than two-thirds of the property size.
Later in June or July 2011, Ms Timms informed Mr Pestridge that Mr Le Grande and another person from the Council came to see her to conduct an interview that was recorded.
About one month after that, Mr Le Grande and another person came to Mr Pestridge's house and spoke to Mr Pestridge in the presence of Ms Timms, informing him to the effect that the Villa in which he was living was never supposed to be sold. On informing Mr Le Grande that the Villa was his permanent residence, Mr Le Grande responded that he should not proceed with the carport.
Mr Le Grande recorded an oral statement from Mr Pestridge during the course of the exchange to which reference is made in the immediately preceding paragraph.
On 27 May 2012, Mr Pestridge made an Informal Access Request to Council requesting copies of Approvals for removable dwelling at Site 9 also known as Site 68 at Hacienda Park. On 6 June 2012, Mr Pestridge received a response from Council advising that no such Approval could be located for the construction of the dwelling on either Site 9 or Site 68. The Letter is before the Court.
Mr Pestridge has undertaken a number of improvements to Villa 9, during his residence there. He makes it clear that he would never have purchased these premises, namely, he would never have purchased the mobile home nor made payments for the purpose of living on the Site occupied by Marina Villa 9, if he had known that approvals for the relocatable home to be placed on the Site had not been obtained. Further, he would not have undertaken the improvements to the Site, which were undertaken.
Mr Pestridge has received rent assistance from Centrelink for the fees paid to live in Marina Villa 9. The entitlement to such Centrelink benefits arises as a result of Marina Villa 9 being Mr Pestridge's permanent residence. Mr Pestridge understands that one or more of the defendants confirmed his permanent residency at the Park to Centrelink, in order for the rent assistance to be forthcoming.
During the course of cross-examination, Mr Pestridge confirmed much of the evidence-in-chief, including the material in the Affidavits. Mr Pestridge accepted that he signed the Occupation Agreement after he noticed the provisions relating to 180 days and 28 days respectively, but that was because he was told it did not apply to him; only to people on holidays; and he did not have to worry about it because it was never policed.
Mr Pestridge agreed it had never been policed and it was put to him that he "got precisely what he expected", to which Mr Pestridge replied that "he expected to get a permanent home".
Mr Pestridge accepted that he was unaware of people keeping a record of how long he was there; he had never been threatened that it would be enforced; and he had never been told or threatened that he was in breach of the requirements of the Occupation Agreement.
The issues with the location of the Marina Villa were raised when application was made for a carport and Mr Le Grande told him about the problems. Prior thereto he had not been conscious of any other matter of concern.
Mr Pestridge testified that if he had not bought at Hacienda Park, he would have bought somewhere else. It was necessary for him to downsize, both physically and financially.
He was also aware that he was not buying the land, which is the reason that he pays site fees. He has also had difficulty getting finance because there is no land and no wheels.
The home itself is too big for the streets; is fixed to the grounds, with footings, hard-wired, and sewerage; and, in his view, you would never get it out of the Park. Mr Pestridge was not present when the structure was moved into place, but he was told by one of the managers of the Park that it was brought in in one piece on a low-loader and that there was trouble getting it into place, resulting in some roof damage.
Mr Pestridge was asked about removal of the home by barge, to which Mr Pestridge responded that, because of his experience in transport, he would estimate that it would cost about four times the amount that the house was worth.
Despite questions relating to the validity of such an estimate, Mr Pestridge was adamant as to the relevant and relative cost. Further, Mr Pestridge made it clear that, with the money that he had paid the defendants, he could have, at the time, bought a unit, but he preferred to be somewhere that had land around it.
Permanent Residents would live permanently at Hacienda Park and the majority of people at Hacienda Park were Permanent Residents. When Ms Holt commenced work at Hacienda Park, there were approximately 50 to 60 sites left free for Short-Term Casual guests. Some of those sites had structures that the casual guests could also hire.
Over the years that Ms Holt worked at Hacienda Park, the number of sites available for Short-Term Casual guests became smaller. Mr Willmott had erected relocatable homes on the sites and would sell them to Permanent Residents. Short-Term Casual guests tended to utilise the park mostly at Easter or over January.
Initially, Long-Term Casuals signed a different agreement to Permanent Residents. The permanent agreement used to be on orange paper and Ms Holt and other Park employees would call them the "Orange Agreement".
According to Ms Holt, and as earlier indicated, a person could only become a Long-Term Casual or Permanent Resident if they applied for approval as an occupant. Before Tanya Hickling commenced, there was a "box at the top of the form that the applicant would tick indicating whether they wanted to be a Long-Term Casual or Permanent Resident" (Holt Affidavit [19]).
Sometime after commencement as Park Manager, Ms Hickling redesigned the form and removed the capacity to indicate permanent or Long-Term Casual residency. Prior to the commencement of Ms Hickling, in 2006, Mr Willmott would be at Hacienda Park most days.
During that time, Mr Willmott would oversee the running of the Park. It was his duty to maintain the Park; sign agreements; sign Centrelink documents; take payments for park fees and monitor late payments; send letters to residents, who owed park fees; and, otherwise, deal with the park mail.
In 2006, when Ms Hickling became the Park Manager, a number of changes were implemented. She became responsible for signing agreements and dealing with Centrelink documents. Ms Holt would pass all such correspondence to Ms Hickling, who also took over the auditing of the Park fees.
Notwithstanding those alterations, Ms Holt continued to record and provide receipts for any payments made by residents of the Park office. Ms Holt would also raise and send out electricity bills after the amounts had been entered into the system.
At the time that the changes were being implemented, Ms Hickling altered the paperwork and informed Ms Holt that only the Long-Term Casual agreements would be utilised and not the Permanent Occupancy Agreement. A conversation occurred in or to the following effect:
Ms Hickling: "From now on, any new residents are only to sign this Agreement [showing the Long-Term Casual Occupation Agreement]."
Ms Holt: "What do I say to people that are moving here permanently? How do I explain this, it's got a restriction 180 days and we know they are going to be living here."
Ms Hickling: "Just tell them we don't count the days and that it's a standard agreement and the only agreement we have."
A further conversation occurred at about the same time between Ms Hickling and Ms Holt which included words the following effect:
Ms Hickling: "I don't want anyone to be given a copy of the Occupation Agreement to take away with them. If they want to read it, they can sit in the office and read it. Don't get into discussions with applicants about the agreements. If anyone has a question, you are not to answer it. Tell them they have to speak to me."
When Ms Holt was the Park Manager, she had a system in which she talked to applicants about the agreements and took them to important points in the document. She would also inform applicants that they could take the agreement away to get legal advice if they so desired.
After Ms Hickling was engaged as Park Manager, she said words to Ms Holt in or to the following effect:
"Don't get into discussions with the applicants about the agreements. I don't want anyone to be given a copy of the Occupation Agreement to take away with them. If they want to read it, they can sit in the office and read it."
The foregoing was said at about the same time as the earlier conversation, recited in these reasons for judgment as the immediately preceding statements of Ms Hickling.
Ms Holt was uncomfortable with the foregoing approach, but, for a short time, implemented it and, if potential occupants asked the question would reply that: "This is the only agreement we have. It is standard. We don't count the days."
From 2011, Ms Holt refused to participate in handing over the Long-Term Casual agreement to Permanent Residents or people intending to be Permanent Residents. From that point onwards, Ms Holt referred all enquiries to Ms Hickling.
Some residents came to the Park office multiple times asking for a copy of their Occupancy Agreement or the Sales Agreement and, on each such occasion, Ms Holt would refer them to Ms Hickling and tell them that it was she with whom they would be required to deal.
In discussing the alterations implemented after the commencement of Ms Hickling, Ms Holt, at [31] of her Affidavit and following, said:
"31. Another change that was made was that we were not allowed to take requests from park residents over the counter; instead John [Willmott] and Tanya insisted that everything was in writing. The problem was, that a resident would put the request in writing and then rarely was something done about it. The resident would then visit the office regularly and ask me 'What is happening with my request, I put it in months ago.'
32. When I raised issues with John [Willmott], such as the change with agreements or the rule about requests being in writing he would say to me 'Don't be negative. If you don't like it, you can leave.'"
Ms Holt discussed the booking system for Hacienda Park and how she utilised it. She also corroborated, at least to some extent, the arrangement with the occupants of Marina Villas and Ms Holt said:
"33. I would use the booking system when a guest came to check in. Each site had a number allocated to it in the booking system that matched the park's community map. When a casual guest came to check in, I would give them a copy of the community map, so they knew where their site was. I would use the electronic booking system to record their stay. In the system the Marina Villas were recorded as 'MV' and the appropriate number, e.g. MV-8. All of the other sites in the park only had a number.
34. I recall most of the tenants in the Marina Villas. I knew that John and Diana Hodson were not living in their Villa as John Willmott had given them permission to sub-let it. To my knowledge, John and Diana Hodson were the only people allowed to do this.
35. I recall Barbara Timms as I knew she was a permanent tenant and she had a Long-Term Casual Occupancy agreement, which I knew to be the incorrect form. I remember that Barbara asked me a question about the agreement to the effect of 'This says I can only stay 180 days', I believe I answered as Tanya had instructed me to 'We don't count the days'."
Ms Holt gave oral evidence, both in chief and under cross-examination. During the course of that oral evidence, Ms Holt gave greater detail on the reservation system and the alteration from a paper system to the use of the computer.
It was Ms Holt's task to enter the data relating to the site and cabin number for each person noting their name, address and how many people would be staying at the particular cabin for each booking. This would occur every time that somebody new arrived.
Ms Holt was shown maps of Hacienda Park (Court Book p 369), which Ms Holt recognised, except for the legend on the bottom. Ms Holt testified that the park map was altered when the Marina Villas were brought in. The original map was used and continued to be used from 2000 onwards and the Marina Villas were added in or about 2006.
Ms Holt testified that the Marina Villas entered the Park in late 2005 and was not certain whether they were ready for Christmas or early in the New Year. They were initially rented out to tourists as cabins.
The Villas that were used on the riverfront and that have been called in these reasons the judgment Marina Villas were brought in on the back of semi-trailers. Each Villa was cut in half and they were brought in through the Homestead Holiday Park. A deck of one of the Villas had to be removed and the Villas were placed and then joined together on site.
The Marina Villas were the only Villas that were not available for rent. Records were kept of the residents, but not each visitor. Everyone who lived or stayed on the Hacienda Park premises was entered on the computer.
Hacienda kept records on the computer and kept hard copies of the rent receipts. The rent receipts showed a site number and the name of the person who owned the site. It did not show the person who paid the rent. The person listed on the computer and otherwise in the records, depended upon the identity of the person with whom the agreement was made, as far as Ms Holt was aware.
Ms Holt was shown Annexure 27 to the Affidavit of Ms Sorenson of 1 August 2016, being a letter from Hacienda on the letterhead of Tweed River Hacienda Holiday Park, addressed to Centrelink and referring to Mr Roderick Kilborn and asserting that he occupied site 6 under the Holiday Parks (Long-Term Casual Occupation) Act 2002. Ms Holt recognised the signature as belonging to Ms Hickling. The letter is dated 16 March 2011.
Ms Holt also testified to the fact that she knew Peter and Kirsty Simons and their relationship with Mr Willmott. Peter and Kirsty Simons were the daughter and son-in-law of Virginia Willmott, Mr Willmott's ex-wife. Apparently, Mr Willmott and his then wife were divorced in 2015 and the relationship had ceased in about 2011 or 2012.
To Ms Holt's observation, Peter and Kirsty Simons were assisting Ms Hickling with administrative work in relation to the office and with outdoor maintenance. Kirsty was in charge of marketing and such matters and was employed to assist in the selling of the Marina Villas.
In cross-examination, Ms Holt was tested on the proposition that the Marina Villas were moved to the Park in two parts. She testified that the Villas came through on a low loader and each was in halves.
While Ms Holt could not recall how they were put in place, she testified that they definitely came in halves. In answer to a proposition put to her in cross-examination, Ms Holt said it is possible that she is recalling the River Villas, but is quite certain the Marina Villas were brought in as two halves but cannot be absolutely certain.
In cross-examination, Ms Holt was taken to the park map at p 369 of Exhibit A (also referred to as Court Book 3) and testified that this was the map that was the same as being handed out in the period up to 2006, without the Marina Villas. A map was used after 2006 which included the Marina Villas. No numbers were inserted into the map in relation to the Marina Villas.
Over the period that Ms Holt was at Hacienda Park, none of the sites on the map were rendered unusable; none were landscaped over and none were unavailable as camping sites. Relocatable homes were put on some of them, even though, when she was employed, they were still on the computer as tourist sites.
Asked to confirm the material at par [28] of her Affidavit, Ms Holt testified that when people first came to the office they were handed an Application for Occupancy, not the Agreement. The Agreement about which she was testifying at [28] was the Occupancy Agreement, which they received only after they had been approved as tenants.
She confirmed that if any person asked about the 180 day limit, she had been told to say, and did say, words the effect of:
"It is the only Agreement we have; it is standard; we don't count the days."
During the course of the cross-examination, seeking to confirm the words used by Ms Holt, the following exchange occurred at Tcpt, p 197:
"Q. … if any of them asked about the provisions concerning 180-day occupation or 28-day consecutive occupation, your response was to say, 'This is the only agreement we have. It is standard, we don't count the days'?
A. That was I was told to say, yes.
Q. And is that what you did say?
A. Yes.
Q. Yes. You never told them that those provisions don't apply to you?
A. They would question why they were there, and as I said, that's what I used to tell them - that we don't count the number of days you are staying there. Yeah, that's what I used to tell them.
Q. All right. So you never actually said to anyone, 'These provisions just don't apply to you'?
A. I did in a roundabout way. I can't remember the words I used, but I said, 'Yes, yes.' I told them - I mean, they had applied for permanent tenancy so I gave them the impression that that's what - that's what they were able to do with it.
Q. And you gave them that impression by saying, 'We don't count the days'?
A. Yes. I was told to say that - coached to say that, not told.
Q. Yes. And so far as you know, all of the staff in the office were coached to say the same thing?
A. Exactly, yes.
Q. And indeed, that was true, wasn't it, that the days weren't counted?
A. No, they never were.
Q. Yes. There was no way you would know whether any of the occupants of the Marina Villas had been there for 28 consecutive nights?
A. Yes, I would. Our office was directly - overlooked the exit/entry area. We saw people - we saw them driving in and out every day, week by week, month by month. So we knew not all of them. I think Marina Villa 10 probably was the only one, but each other one was - was their permanent place of residence. One of them worked over the road, used to call in to have a chat on her way to work, so we knew they were living there."
Comment needs to be made on this exchange. First, counsel for the defendants put, positively, and presumably on instructions, that, to the extent of Ms Holt's knowledge, "all the staff … were coached to say the same thing". (Emphasis added.) Secondly, the representations upon which the plaintiff relies and to which the purchasers/occupiers attest were provided by one or other (and sometimes more than one) of Peter or Kirsty Simons or Tanya Hickling.
Ms Holt is unable to testify as to the terms of the representations by others, when she was not present. Further, Ms Holt is unable to testify as to the coaching provided to Kirsty or Peter Simons or Tanya Hickling in the absence of Ms Holt.
If "all of the staff in the office" were coached, then it could only have been Mr Willmott who provided the coaching. Further, as Ms Holt referred all greater enquiries to Ms Hickling, a necessary inference arises that more information or representations were provided by Ms Hickling.
Ms Holt confirmed that no one had ever sought to be removed for overstaying the limits of 180 days or 28 days respectively. She also testified that she had never seen the Marina Villas depicted on any local council map or record (Tcpt, pp 199.41-200.1).
In what is obviously Mr Willmott's writing, the Application seeks the relocation of 10 sites (short-term) within the existing Caravan Park and refers to a plan for the site that is attached as is a consultant report. At p 12 of Exhibit A, there is an internal Council document which is entitled "DEVELOPMENT APPLICATION/SUBDIVISION APPLICATION, PRELIMINARY ASSESSMENT AND REPORT TO DEVELOPMENT ASSESSMENT PANEL".
At p 14 of Exhibit A, the internal recommendation recites that there is no objection to the Application for relocation subject to conditions: the lodging of detailed drawings showing street lighting layout; water services; location of fire hydrants; and the submission and approval also of an amended plan showing the dimensions of all boundaries of each site. At p 18 of Exhibit A, it is noted that the land in question is flood liable land and available only for short-term sites.
The internal assessment was accepted and the minutes of the Development Assessment Panel, held Friday, 25 July 1997, are contained at p 20-23 of Exhibit A. Conditions were placed on the Application, which included the electrical wiring, power outlets et cetera, to the extent possible, being located above design flood level and the rendering of 10 other sites in Hacienda Park incapable of occupation and rehabilitated for open space purposes.
Mr Ainsworth was then taken to p 37 of Exhibit A which is the "NOTICE TO APPLICANT OF APPROVAL OF A DEVELOPMENT APPLICATION". This document refers to 11 Caravan Park sites and grants the development of the Application subject to conditions set out in the Notice.
First, the Application was amended on 28 July 1997 by John Willmott applying, on behalf of Hacienda. Another handwritten amendment to the application refers to 11 sites and, expressly refers to "an additional short-term site within the Park" to be deleted.
The Notice of Approval of the Development Application approves the 11 Caravan Park sites. I do not set out the conditions, but note that they include: the necessity to provide detailed drawings showing street lighting layout, water services, location of fire hydrants, hose reels and power outlets (Condition 3); the location, protection and modifications of and to existing public utilities (Condition 4); the provision of detailed landscaping and plans for the treatment of proposed private open space areas adjacent to the relocated sites (Condition 6); rendering unserviceable 11 other sites in Hacienda Park to be landscaped in an approved form (Condition 7); the operation of the Caravan Park in accordance with this consent; and any building work to comply with any applicable standards under the Local Government (Caravan Parks and Camping Grounds Transitional) Regulation (1993) (sic) or any other Act or approval granted by Council (Condition 8); that all caravans are to be maintained in a condition that will allow removal at short notice (Condition 9); and that the proposed new sites be maintained so that floodwaters would not be unduly impeded (Condition 10).
The foregoing Notice of Approval was granted on 8 August 1997. On 11 May 1998, an Amended Caravan Park or Camping Ground Approval was issued by which the Council granted to John Willmott approval under s 68 of the Local Government Act 1993 (NSW) in respect of the Caravan Park at Hacienda Park.
The Approval identified 97 long-term residences, none of which are the Marina Villas. Some confusion arose as to the numbering of sites, but the 11 May 1998 Approval utilises original site numbers.
The conditions on the long-term residences are the provision of facilities and the like. Further, there are a number of short-term residences approved, being the sites that included the sites to which the approval of 8 August 1997 refers as sites that would require being rendered unusable.
The Standard Conditions set out in the Approval of 11 May 1998 (Exhibit A, pp 42 and 43) require that a person must not be permitted to stay in a movable dwelling that occupies a short-term site or campsite for a total of more than 150 days in any 12 month period, unless the movable dwelling is a holiday van, which the person occupying it owns, in which case it must not be occupied for more than 180 days in any 12 month period (Condition 8 at p 43 of Exhibit A). Mr Ainsworth described the process by which an Approval of this kind would issue. He also made clear that the Approval does not stipulate all conditions that apply to a caravan park.
At p 44 of Exhibit A, there is an internal file note made by Mr Ainsworth, but he has no recollection of the meeting to which this relates. His understanding of the proposal was that Hacienda Park was considering a few changes and utilising the development approval from 1997.
Mr Willmott, according to Mr Ainsworth, was considering doing internal changes to the park, in part, to separate the permanent and short-term residents in order, he thought, to reduce conflict. The Letter at p 45 sent by Mr Ainsworth, over the signature of GJ Edwards, on 22 March 1999, reflected that approach.
Mr Willmott responded to the Letter at p 45 of Exhibit A on 26 March 1999 (Exhibit A, p 46) detailing the changes that were to be made. The handwriting in the address and the signature is that of Mr Willmott, the other notes were those of Mr Ainsworth. The Letter makes clear that the 11 existing sites that were to be cancelled were each a short-term site within Hacienda Park.
On 29 March 1999, Mr Willmott wrote a Memo to Tweed Shire Council, attention Mr Ainsworth (Exhibit A, p 53). The Memo is said to be from Hacienda, Homestead Caravan Park and John Willmott. It is appropriate to extract the following:
"Further to discussions and correspondence in regard to the re-organisation of sites within the Hacienda and Homestead Villages as part of an upgrading of facilities and standards, I wish to confirm the following
(1) all new tourist park villas will be owned by the respective Parks and will be located on short term sites. They will definitely not be used as a permanent place of residence by anyone;
(2) the re-organisation of sites, will at no time during the process or thereafter result in a change to the respective total no's of long and short sites as presently approved."
There is an internal Memo from Mr Ainsworth to his supervisors (Exhibit A, p 54) at which he reiterates the commitment by Mr Willmott not to alter the proportion of long-term and short-term sites, including during the process of upgrading Homestead Park. The internal Memo is reflected in a response Letter written by Mr Ainsworth, whose signature appears over the name GJ Edwards at the foot of the Letter, dated 13 April 1999 (Exhibit A, p 55), which refers to the proposed upgrade of Hacienda Park.
There is agreement in principle to the changes, but a number of matters are set out. First, it is pointed out that there is a need to seek Development Consent for the boundary adjustment, prior to approval to relocate any individual structures and an amended approval to operate the park.
Secondly, the Council indicated that any relocated caravan or annex is required to comply with Council's current policy; there needs to be engineers' certificates relating to structural adequacy; no new UMDs can be placed on the long-term sites and, subject to an irrelevant exception, that a small number may be relocated to long-term sites if they comply with Council's Policy relating to floor heights; and, in respect of flood issues, no structure shall be more hazardous in the proposed new location. The flood issue is the subject of other documents, relating to earlier amendments.
The Development Control Plan Number 5, issued by the Council on 28 December 1990, deals with the development of flood liable land (Exhibit Q) and the flood levels are prescribed at Pt 4.0, relative to Hacienda Park (Exhibit Q, p 14). Further application was made on 16 June 1998 by Mr Willmott on behalf of Hacienda and the relevant policy relating to un-registrable movable dwellings and annexes on flood liable land is Pt B2.29 of the Council Policy and Delegation Document (Exhibit Q, p 44-45).
That last-mentioned document makes clear that the Council Policy was that short-term sites will not be allowed to be converted to long-term sites on flood liable land, except as a reorganising of sites in accordance with Council's approval of an upgrading program and the base to the UMD must be sufficiently structurally sound to withstand flood water and wind loadings. Council's Policy makes clear that no UMD may be placed upon flood liable land without prior approval of the Council (Exhibit Q, p 45).
Returning to the Council Letter of 13 April 1999 to Hacienda (Exhibit A, p 55), the document makes clear that the Agreement is an agreement "in principle". While Mr Ainsworth attests to what he understands that to have meant, that subjective intention is irrelevant. Nevertheless, I accept that an agreement in principle is, generally, not a final agreement and requires the detailed agreements and conditions to be the subject of compliance.
On 12 August 1999, Council, on the recommendation of Mr Ainsworth, wrote to the agents of Hacienda, being consulting surveyors who had filed the Application (Exhibit A, p 56), requiring confirmation that all the conditions of the Development Consent for the relocation of the 11 caravan sites had been complied with and reminding Hacienda of Condition 7, in that Development Consent, that 11 existing sites were to be vacated to allow for the 11 sites to be established and that the sites to be vacated were all short-term sites in Hacienda Park.
The letter also required the sites to be nominated. It also required clarification that the number of sites would not be increased in the two parks (combined) and clarification (there being some confusion) of whether it was 11 or 10 sites that required alteration.
Mr Ainsworth was asked about the document at Exhibit A, p 83, which is a "Notice for Approval to Install a Relocatable Home" for Site 152. It is signed by Mr Willmott. Similar application was made in relation to Site 153 which can be found at p 88 of Exhibit A and following. There are other similar applications.
By handwritten letter, received by the Council on 18 August 1999, Mr Willmott referred to the letter to the consulting surveyors to which earlier reference has been made and advised the Council of a number of items to which the earlier letter referred. In relation to services, Mr Willmott stated that the work had not been completed and that Homestead Park would assume and undertake to comply with the Development Consent (97/171, to which earlier reference has been made) issued to Hacienda.
In relation to items two, three, four and five, Mr Willmott stated that Hacienda wished to discontinue use of 10 long-term sites and Homestead wished to discontinue the use of one long-term site to enable 11 sites to be established at Homestead. There are other matters addressed in the letter.
On 11 October 1999, Council determined that consent would be granted to the Development Application, subject to conditions that are described in the Notice of Determination (Exhibit A, p 125). One of those conditions was that all conditions of Development Consent 97/171 for the relocation of 11 caravan park sites issued on 8 August 1997 shall be complied with (Exhibit A, p 127 [12]).
On 14 October 1999, Council wrote to Mr Willmott at Hacienda Park, relating to proposed cabins on Sites 152 and 153, which were the subject of earlier reference. The effect of the letter is that Council rejected the placement of the structures on those sites.
In response to that letter, Mr Willmott, in a handwritten note to Mr Ainsworth of 23 November 1999 (Exhibit A, p 131) stated that "the UMDs were on short term sites, park owned, the owner being a Commercial enterprise and the occupancy would be by tourists who would readily depart in event of flooding". On 11 February 2000, Mr Willmott, in another handwritten note to Peter Ainsworth, supplemented the earlier note of 23 November seeking amelioration of the conditions and stating that "flood mitigation would be unmeasurable".
On 24 February 2000, Mr Ainsworth, over the signature of GJ Edwards, wrote to Mr Willmott making clear that prior development consent was required to be obtained before the installation of any structure.
The saga in relation to Sites 152 and 153 continued with a further handwritten note from Mr Willmott, this time referring to Site 150 and 151 dated 18 May 2000. This was to similar effect to the application of the Site 152 and 153. On 25 May 2000, Council (Mr Ainsworth), over the signature of Mr Edwards, responded to the application in relation to Sites 150 and 151.
Approval was given in relation to these sites on the basis of a number of conditions. Conditions were imposed as to heights and boundary distances and, relevantly, at [15], the Council insisted that the site "shall remain short-term site and the UMD under ownership of the caravan park".
On 27 March 2003, Council wrote to Mr Willmott advising him that the approval to operate Hacienda Park would expire on 10 May 2003 and it was necessary for the Park to obtain a new approval to operate. An Application to Operate was lodged by Mr Willmott and is undated, but was received by the Council on 2 or 3 June 2003.
In response to that Application, Mr Ainsworth, on behalf of the Council, wrote to Mr Willmott on 25 July 2003, requesting a list of proposed long and short-term sites for consideration; commenting that structures were already located on Sites 133 and 130, despite the absence of approval to operate listing those sites; and noting that, as the Park is flood prone, the prior approval of Council was required for the placement of any structures or modifications of existing structures. On 25 August 2003, in another handwritten note to Mr Ainsworth, John Willmott advised Council that all residents were advised that they must obtain Council approval for any structures.
As to the reference, implicit in the letter from Council of 25 July 2003 (Exhibit A, p 150), Mr Willmott responded that the residents:
"are also given details of your department in order to contact you.
We do not authorise, aid, abet or counsel such offences and we clearly advise residents of their obligations to obtain the necessary Council approval.
I would further advise that it is on our agenda to address the legality and compliance of structures within the Park."
On 17 November 2003, Mr Ainsworth, over the signature of GJ Edwards, wrote on behalf of Council to Mr Willmott relating to his Application for Approval to Operate and Council's request for an updated community map. It was made clear that the new map required an indication of the removal of sites and the deletion of other sites or their amalgamation into adjoining sites.
The letter also referred to the submission nominating 96 long-term sites and 100 short-term sites and advising Mr Willmott that it would be necessary to obtain development consent to alter the ratio of long and short-term sites and asking for a listing of the 97 long-term and 99 short-term sites that had occurred previously.
On 20 January 2004, Mr Willmott responded to the letter of 17 November 2003 and listed the long-term sites and the short-term sites. The site numbers in the short-term sites refer to sites upon which the Marina Villas are placed. There is then an exchange of correspondence in relation to these issues.
Relevantly the site numbers for the Marina Villas were Sites 39, 40, 42, 53, 57, 62, 64, 66, 68 and 71. Each of those sites is described in the letter from Mr Willmott of 20 January 2004 (Exhibit A, p 154) as a short-term residence.
On 8 March 2004 (Exhibit A, p 159), the Council wrote to Mr Willmott approving the operation of Hacienda Park, which approval listed the sites that were short-term residences. Each of the Marina Villas was described, by site number, as a short-term residence.
Further, it was a condition of that approval that Application was to be made to Council prior to the installation of any rigid annex or UMD (Special Condition [1] at Exhibit A, p 161). The Condition was reiterating a requirement of the legislation, but Mr Ainsworth, who wrote the letter, considered it appropriate, because of his awareness of non-compliance with the Condition.
On or about 30 May 2005, Mr Willmott made Application for the placement of a UMD on Site 39, one of the Marina Villas. Plans were attached to that Application. It is unnecessary, at this point, to determine or to deal with the accuracy of the plans of the UMD to be erected. It is sufficient for present purposes to note that after some correspondence and the filing of other documents, the Council granted approval under s 68 of the Local Government Act to the connecting of the UMD to the storage system and other drainage.
On 25 August 2005, the Council granted approval for the placement of the UMD at Site 39, on certain conditions, one of which (Condition [11], Exhibit A, p 177) was that the structure would be used as a "park van only, and occupied on a short term basis".
Applications were made, otherwise, in relation to other Marina Villas, being Site 40 (Exhibit A, p 178), Site 42 (Exhibit A, p 182), Site 53 (Exhibit A, p 188), Site 57 (Exhibit A, p 194), Site 58 (which is not a Marina Villa) (Exhibit A, p 200), Site 62 (Exhibit A, p 206), Site 64 (Exhibit A, p 210), Site 66 (Exhibit A, p 216) and Site 71 (Exhibit A, p 222). There does not seem to be an Application for the placement of the UMD on Site 68 (the only other Marina Villa), unless the reference to the Site 58 was a typographical error. Further, none of the plans for the current Marina Villas were approved.
On 20 October 2005, Mr Ainsworth, together with Brad Pearce of the Council, inspected Hacienda Park. In a Memo dated 24 October 2005, Mr Ainsworth noted that eight cabin structures had been placed adjacent to the boat harbour to the rear of the Hacienda Park. This is a reference to the Marina Villas.
The Memo, which is an internal Council Memo, then states:
"The configuration does not appear to reflect the approved site layout. The relevant conditions of consent did not appear to have been satisfied and there are not approved sites in the location were (sic) structures have been placed.
…
The structures have been placed on the floodplain and the safety of any occupants would be at risk in a flood event. It appears that the cabins may be being prepared for occupation over the Christmas period.
It is suggested that Council seek an immediate injunction to prevent any further works, and take necessary action to have the structures removed. It appears that the site is being prepared for the placement of two additional cabins."
On 24 October 2005, the Council through Mr Ainsworth over the signature of GJ Edwards, wrote to Mr Willmott advising that the Application for Installation of UMD at Site 66 had been refused (Exhibit A, p 305).
On 28 October 2005, Mr Ainsworth prepared a Letter that Mr Edwards signed that reflects the Memo at p 303. Mr Ainsworth uncontroversially explained that the site plan reference to Site 39 could not be a reference to the Marina Villa, because the site plan references Fifth Avenue and Main Street, which is nowhere near the marina. The letter of 28 October 2005 (Exhibit A, p 305) requests the Park Manager to mark the site boundaries and advise Council when those boundaries have been marked so that the Application can be determined.
On 2 November 2005, Mr Ainsworth met with Mr Willmott and others. The others included Ms Hickling and, from the Council, Messrs Bishop and Pearce. Essentially, the meeting was seeking a resolution of the issues associated with the placing of the Marina Villas.
Mr Willmott advised that he was no longer seeking to realign the boundary between Homestead Park and Hacienda Park; and that there were already water and sewerage lines. Mr Willmott was advised by Mr Ainsworth that the cabins had not been approved and that the 1997 DA approval still had outstanding items.
Mr Willmott said that he had understood that the cabins had been approved following the lodgement of applications some three months earlier. To that expression of opinion Mr Ainsworth advised that the current approval, under s 68 of the Local Government Act, to operate the Park does not reflect the relocation of the sites to the rear of the Park (the Marina Villas).
Mr Ainsworth advised it was necessary to satisfy the criteria and conditions in the 1997 Development Consent and, once they were satisfied, then ascertain how to satisfy the Development Consent, allowing the movement of the sites to the rear of the Park. Mr Ainsworth advised Mr Willmott and the others at the meeting that Ms Holt had advised him that a modified community map was currently being prepared.
Mr Willmott, during the course of the meeting, said that if the problems could be rectified simply, then "well and good, but the language of 'if' they can be approved, and 'maybe' he considered is obstructive". Mr Willmott would then, as a consequence of the "obstruction", meet with the administrators and make it clear that a statement such as this was "a very serious matter", in which he was being told that he was "in breach of the law" or that words like "you could be sued" had been used by Mr Ainsworth to the Managers of the Park and were problematic.
Mr Ainsworth made it clear during the course of oral testimony that the notes did not represent the depth of the conversation but, rather, indicated the topics that were discussed. He made it clear that during the course of the meeting, which was the first meeting with Mr Willmott and Ms Hickling, his supervisor, Mr Pearce, had emphasised that the Council did not necessarily want to prosecute for the placement of the structures without prior approval and wanted to seek to work out an approval process (Tcpt, pp 250.47, 251.6).
Mr Ainsworth (Tcpt, p 251.10 and following) made it clear that there were a number of conditions in the 1997 consent and in the 1999 consent which had not been satisfied or performed. He also explained (Tcpt, p 252.6 that the 1997 consent did not allow for UMDs to be placed on the sites. It only allowed for the location of the sites themselves.
Notwithstanding the wording of the note, which referred, as earlier stated, to topics, Mr Ainsworth made it clear that during the course of the meeting the Council representatives continued to make it clear that Mr Willmott would need "to modify your Development Consent and modify your community map and then [Council] can process your s 68 Application to place structures" (Tcpt, p 252.48-252.50).
It is clear from the evidence of Mr Ainsworth that Council was seeking to regularise the process and ensure that whatever was to be done was approved in accordance with the necessary approval and all the conditions had been met. The first requirement was a s 96 Application to modify the consent and the conditions in the plans, by relocating 10 or 11 sites and then to modify the community map.
Once the consent was through and the conditions were satisfied, there was a need to upgrade the community map so as formally to relocate the sites adjacent to the marina by the numbers by which they were known. Further, because the numbers had changed, there would need to be a s 68 Approval modifying the approval to operate. It is that Approval that would allow the operation of 97 short-term and 99 long-term sites. Those approvals must be done with the correct numbers.
In all, there were three stages that were needed: first, a DA that was accurate; secondly, a community map and s 68 Approval to operate; and thirdly, approval of an application to place particular structures. This is gleaned from the Transcript and answers given in Tcpt, pp 253.32-256.50.
Mr Ainsworth was not the author of the notes to which reference is made immediately above, but did use the notes for the purpose of refreshing his memory. Mr Ainsworth also made clear that there was a typographical error in the notes (Exhibit A, p 320) and the notion, recorded in the notes, that Council could give a s 68 Approval without the modification would be contrary to everything that was said at the meeting and which he had previously said. Mr Ainsworth believed that the word "can" should have read "cannot": Tcpt, p 256.28-256.31).
On 2 June 2006, the Council approved the operation of the Caravan Park. The reference in the letter is that it was initially issued on 8 March 2004, revised on 1 June 2006 and expired on 7 March 2009.
The letter (Exhibit A, p 333-335) lists the long-term sites and the short-term sites. Each of the sites numbered on the community map that contains the Marina Villas sites are listed within the short-term site prescription.
On 26 October 2006 (Exhibit A, p 348), Council wrote to Hacienda advising them that the s 96 Application (D 97/0171.01) for relocation of 11 caravan park sites had been approved. The covering letter drew attention to the deletion and replacement of some conditions and the approval itself is before the Court (Exhibit A, p 349 and following).
This document headed "Amended Consent Issued 26/10/2006" is a document on which the defendants relied heavily in the proceedings. After referring to Tweed Shire Council and the Environmental Planning and Assessment Act 1979 (NSW) it contains a preamble and then a number of conditions of consent.
It is unnecessary to repeat each of the conditions of consent. Many of them have been the subject of previous comment. It is appropriate to set out the preamble to the conditions, which is in the following terms:
"AMENDED CONSENT ISSUED 26/10/2006
NOTICE NO. 97/171
(PF4040/1652)
TWEED SHIRE COUNCIL
ENVIRONMENTAL PLANNING AND ASSESSMENT ACT, 1979
NOTICE TO APPLICANT OF APPROVAL OF A DEVELOPMENT
APPLICATION
To: Hacienda Caravan Park Pty Ltd
PO Box 770
ROBINA OLD 4226
Pursuant to Section 92 of the Act, notice is hereby given of the determination by the Tweed Shire Council of Development Application No. 97/171 relating to land described as:-
Lot 2 DP 535174 Old Pacific Highway, Chinderah
to be developed in accordance with plans and details submitted for the purpose of -
RELOCATION OF ELEVEN (11) CARAVAN PARK SITES
The Development Application has been determined by the granting of consent subject to the conditions set out in this notice."
The plan attached to the Approval, the preamble to which is recited above, sets out the 10 Marina Villas sites, the plan for which can be found at Exhibit A, p 352 and Exhibit A, p 353. The defendants rely upon the fact that the plan at p 352 has a depiction of structures, one on each site and submits that, as a consequence, the placement of the UMDs was approved or that it was reasonable for Mr Willmott, Hacienda and Jonval to take the view that each of the UMDs had been approved for the relevant site.
As the preamble makes clear, the approval is not an approval for the placement of a structure. It is approval for the relocation of sites. While a subjective view of Mr Ainsworth may be unhelpful, Mr Ainsworth confirmed that this was the understanding of Council as to the effect of the approval (Tcpt, p 264.11-264.17).
This subjective understanding was reflected in an internal Memo at the Council of 6 March 2007 (Exhibit A, p 355) in which Mr Ainsworth made it clear that the park owner had yet to submit a modified community map. Nor, according to the memo, had he yet received s 68 Approvals to place the cabins.
Approval of the cabins would require plans of the cabins and the Approval would allow only the installation of a cabin consistent with that cabin plan. The cabin that is placed on a site has to accord with that which has been approved.
As at 6 March 2007, according to Mr Ainsworth, the Council had not received any paperwork in connection with an Application to place structures on the Marina Villa sites. This evidence accords with the documentary material available to the Court.
Further, the foregoing explanation was that which was, in advance, provided to Mr Willmott and Ms Hickling at the meeting already described. In light of that explanation, it cannot be reasonable to hold the subjective view suggested. Further, there is no evidence that such a subjective view was held by either Mr Willmott or Ms Hickling.
On 19 March 2007, the Council wrote to Mr Willmott and Hacienda expressing the view it had formed relating to the approval and its effect. That Letter (Exhibit A, p 357) referred to the Development Consent D97/0171 of 26 October 2006 and stated that the "modified consent approved the creation of 10 caravan park sites at the northern end of the Park and forfeited use of 10 other existing sites within the Park. The 10 forfeited or disused sites were nominated by modified Condition 7A as Sites 39, 40, 42, 53, 57, 62, 64, 66, 68 and 71."
In the letter of 19 March 2007, Council requested compliance with the regulations by the provision to Council of "a modified community map for consideration. That map should indicate the location and site numbers of the 10 new sites created by the Development Consent and remove reference to the 10 previous sites which are to be disused."
On 9 September 2010, Council wrote to Mr Willmott relating to outstanding matters at Hacienda Park relevant to the Application for Approval to Operate. Council informed Mr Willmott that it was unable to process the Application as two Conditions (Conditions 7(a) and 3(a)) of the Development Consent had not been fulfilled. The letter then recited those Conditions, which related to the requirement to provide detailed drawings showing street lighting layout, water services, hose reels and power outlets and to rendering unserviceable the other relevant sites.
Further, Council reiterated, in the terms of Condition 7(a), that structures "shall not be erected on the site other than with the prior approval of Council" and that the "Park shall contain 97 long-term and 99 short term sites only". On 15 September 2010, Mr Willmott lodged an Application to Operate/Inspect Caravan Park, Camping Ground (Exhibit A, p 367).
There was a meeting between Council officers and representatives of Hacienda including Mr Willmott, Peter Simons and Tanya Hickling, during which Mr Le Grande, on behalf of the Council, reiterated the need for a community map that was up-to-date and/or proposed; the provision of street lighting layout et cetera for the 10 Marina Villas; and the deletion of the relevant site numbers from the pre-existing community map. During the course of that meeting there was discussion relating to the set offs from the boundary, which, for present purposes, is irrelevant.
During the course of the meeting, Mr Willmott questioned whether different sites could be deleted, instead of those to which reference had been made. To that enquiry the Council replied that once the 10 sites had been specified in the Development Approval, then, to effect such a change, there would need to be an amendment to the Development Approval.
On 17 November 2010, Mr Le Grande inspected Hacienda Park and, on 19 November 2010, advised Hacienda that "there were no outstanding matters noted". The evidence of Mr Ainsworth (and Mr Le Grande) was to the effect that such a letter did not cut across the need for a community map that reflected the location of the Marina Villas, nor the need for approval for any structure that was placed or to be placed on such a site.
On 17 January 2011, Council wrote to Hacienda Park granting their Approval to Operate. That Approval to Operate specified long-term sites and short-term sites, identified on a community map attached thereto.
The sites specified for the Marina Villas were sites 39, 40, 42, 53, 57, 62, 64, 66, 68 and 71. Each of those sites was, under the terms of the letter, not specified in the Approval to Operate as either a short-term site or a long-term site.
Further, by Condition 17 and Condition 18, Council informed Hacienda that the holder of the Approval to Operate "must give Council written notice of the installation of a relocatable home or associated structure within seven days after the completion of the installation" and that the holder of an Approval to Operate must "give the Council written notice of the installation of a rigid annex within seven days after its completion".
On 1 August 2011, Council wrote to Mr Willmott referring to the provisions of cl 73 of the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Movable Dwellings) Regulation 2005 (NSW). Specifically, Council drew attention to the requirement that a person must not be permitted to stay in a movable dwelling occupying a short-term site for a total of more than 150 days in any 12 month period, unless the movable vehicle is a holiday van which the person owns and also drew attention to the requirement that the owner of a holiday van that occupies a short-term site must not be permitted to stay in the holiday van for a total of more than 180 days in any 12 month period.
Council, in that letter, also drew attention to the fact that, in a high hazard park (which Hacienda Park was), a UMD can be installed on a short-term site with the approval of Council provided that the UMD is only to be used as a park van. The letter drew attention to the fact that Hacienda Park was a high hazard flood liable campsite and that the provisions for maximum stay were operative in that respect.
On 29 August 2011, Hacienda Park, over the signature of Mr Willmott, acknowledged receipt of the Letter of 1 August to which reference has been made immediately above and that they were of the view that "at all times … [they] … had complied with those clauses". Further, that letter seems to have accompanied an Application to Operate/Inspect a Caravan Park (Exhibit A, p 382) signed by Mr Willmott and dated 26 August 2011, but received by Council on 1 September 2011.
The abovementioned Application for Approval identified 97 long-term sites and 99 short-term sites and attached a community map. The designation specified as short-term sites included each of the Marina Villas (see Exhibit A, pp 383 and 384).
On 9 September 2011, Council required that each of the sites be properly delineated (Exhibit A, p 385). On 16 September 2011, Council issued an Amended Approval to Operate Hacienda Park, addressed to Mr Willmott at Hacienda.
The covering letter is at Exhibit A, p 386 and the Formal Approval commences at Exhibit A, p 387. At Exhibit A, p 387, the short-term sites are specified in [2] and the Approval expressly specifies each of the Marina Villas as short-term sites. The site numbers are drawn from the community map submitted with the Application to Operate of 26 August 2011, to which earlier reference has been made.
Once more, the Council reiterated that a person may not occupy a short-term site or camp site for a total of more than 150 or, in certain circumstances, 180 days in any 12 month period. The Approval expressly refers to the community map dated 17 January 2011, or, more accurately, attached to the Approval to Operate of that date (Exhibit A, p 376), which, again, specifies site numbers for the Marina Villas, which, on the Approval of 16 September 2011, are specified as short-term sites (see Exhibit A, p 389 [12]). Conditions 17 and 18, summarised above, are reiterated: Exhibit A, p 390.
The cross-examination of Mr Ainsworth, like examination-in-chief, tended to obtain Mr Ainsworth's view of the legal requirements and his subjective view of the effect of a number of letters and/or memoranda. The foregoing is not a criticism of the cross-examination, but the subjective view of any witnesses to the requirements can go, in the case of Council witnesses, only to the practice of Council, not the legal effect of the legislation and/or regulations.
Nevertheless, Mr Ainsworth (and the other Council witnesses) made it clear that they were unaware of the Council policing the maximum stay requirements in regards to park owners or site occupiers (Tcpt, p 393, referring to Exhibit A, p 159). Nor was Mr Ainsworth, or the other Council witnesses, aware of an obligation on the part of the park owner to monitor whether people were present for more than 180 days in a 12 month period.
Mr Ainsworth agreed that, from Council's perspective, a statement that the occupation periods are not policed was an accurate statement. Similarly, it would be accurate in relation to the 28 day continuous occupation requirement.
Further, Mr Ainsworth was unaware of any steps being taken by any Council to enforce such requirements in any caravan park, in his experience. Nor is he aware of any caravan park owner taking steps to enforce such a requirement.
In questioning on Exhibit A, p 304 (Tcpt, p 298 and following), Mr Ainsworth acknowledged that his advice to his superiors was to seek an injunction immediately, but, to his knowledge, his advice was not followed. Further, while no attempts have ever been made to remove people from homes, he was not under instructions that the Council was not to remove people from homes.
Mr Ainsworth, in particular, questioned whether he had the power to remove people from homes. On the other hand, Council has taken action to have a structure removed following non-compliance.
Given the above detailed analysis of the documents provided in Exhibit A (and to a lesser extent in Exhibit Q), it is unnecessary to deal extensively with the evidence-in-chief (or cross-examination) of the other Council witnesses. Some matters should be noted.
Mr Seth Philbrook was called. He is a Town Planner with the Council. He dealt with the application to modify the Development Consent and his task was the approval of the Section 96 Application under the Environmental Planning and Assessment Act (Exhibit R). Most relevantly, Mr Philbrook denied or disagreed with the proposition that approval "in accordance with both plan sheet 1 and sheet 2" included the structures on sheet 1. Mr Philbrook took the view, as does the Court (see above), that the consent was for the sites to which the Application relates, not the structures.
Mr Le Grande, to whom reference has already been made in these reasons, was the Compliance Officer with the Council and had been for some 11 years. He supervises about 35 caravan parks. Again, Mr Le Grande was taken through a number of the documents, particularly those documents prepared by him.
Asked about the letters, an example of which is in Exhibit A, p 373, in which Council states to Hacienda that "there were no outstanding matters noted", Mr Le Grand stated that this was not a reference to issues of a general kind about development approval. Rather it was a reference to the annual inspection and whether, for example, sites were delineated; numbered; toilets were in good order; no maintenance to be done; and nothing outstanding, health wise, in the caravan park (Tcpt, p 335).
The purpose, according to Mr Le Grande, of the annual Inspection is to inspect the park and ensure that the park has the required documents on display; the road services are fine; the toilets and showers are in proper order, and disclose no health issues; and those matters required of the park are in accordance with the Approval to Operate. If something is not working or not in order then the Inspector will ask the park to remedy it (Tcpt, p 335).
Otherwise, it is unnecessary to recite or summarise the evidence further. The defendants called no oral evidence and the plaintiff relies on the inferences that may be drawn as a consequence of that failure. Conversely, the defendants rely on the failure of the plaintiff to call any of Ms Hickling, or Kirsty or Peter Simons. Thus, it is necessary to deal with the drawing of inferences and in particular the appropriate use of the principles in Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8.
In the course of the reasons for judgment of Windeyer J, he relied on the classic description of rational inference given by Sir Frederick Jordan CJ in Bell v Thompson (1934) 34 SR (NSW) 431. His Honour continued, citing with approval, a comment from J Wigmore, A Treatise on the Anglo-American System of Evidence (3rd ed, 1940) vol 2, s 285, at 162 in the following terms:
"The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party. These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which made some other hypothesis a more natural one than the party's fear of exposure. But the propriety of such an inference in general is not doubted." (Cited by Windeyer J in Jones v Dunkel, at 320-321.)
To support the approach cited from Wigmore, Windeyer J cited two passages from R v Burdett (1820) 106 ER 873. Other than in exceptional circumstances, different rules apply in criminal proceedings. In one of those exceptional criminal proceedings, the High Court, once more, analysed the proper inference that may be drawn from the failure to call a witness.
In Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65, the High Court discussed the authorities relevant to the issue. Citing Morgan v Babcock & Wilcox Ltd (1929) 43 CLR 163; [1929] HCA 25, it referred to the judgment of the House of Lords in Blatch v Archer (1774) 98 ER 969 at 970. In Blatch v Archer, Lord Mansfield observed:
"it is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted."
This was the basis of the comments, to which earlier reference has been made in R v Burdett, relied upon by the High Court in Jones v Dunkel. After examining the authorities, the plurality (Mason CJ, Deane and Dawson JJ) in Weissensteiner v The Queen, at 227, said:
"We have quoted rather more extensively from the cases than would otherwise be necessary in order to show that it has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept that evidence. It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence. That is almost a truism. It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it." (Weissensteiner v The Queen, at 227.)
Plainly, in these proceedings, it would have been reasonably expected that Mr Willmott and others who worked in the office at Hacienda and for Hacienda (whether or not employees) would have been called in relation to the evidence as to conversations and the misleading nature of the representations that were made. Further, one would expect evidence from such persons in relation to the directions not to allow potential occupiers to have a copy of the contracts and the coaching of persons dealing with potential occupiers and occupiers as to what should be represented.
Mr Willmott is a defendant. Mr and Ms Simons (and Ms Hickling) are (directly or indirectly) related to him. They were officers or employees of, or workers for, one or more of the defendants. In the Blatch v Archer sense, they are in the power of the defendants to call. The proposition, put on behalf of the defendants that they should have been called by the plaintiff is rejected.
In the circumstances of the failure of the defendant to call witnesses contradicting the evidence adduced by the plaintiff, the Court more readily draws the inferences that are otherwise available from the evidence adduced by the plaintiff and infers that the evidence that may have been called would not have assisted any of the defendants' cases. The Court cannot, and does not, infer that the evidence would have been unfavourable to the defendants: Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17.
There are two aspects that are especially noteworthy. Counsel for the defendants put to Ms Holt that she and the other staff were coached to say the same things. Further, it was put to Ms Holt that she was coached to say that the limits of 180 days and 28 days were not policed, to which she agreed.
But, as summarised at [311] above, Ms Holt never agreed that she did not say those clauses "did not apply". She said it "in a roundabout way". Nor was there a challenge to Ms Holt's evidence that she was directed not to give anyone a copy of the Occupation Agreement to take away with them and that if they wanted to read it, they could sit in the office and read it. Further, it was not suggested to Ms Holt that the direction to her that any further questions in relation to the agreements or the terms should be referred to Ms Simons or Ms Hickling.
Further, Ms Holt was not tested on the attitude of Mr Willmott to the non-provision of the previously available Occupation Agreement for permanent residence and the representations in relation to permanency.
The exchange in cross-examination of Ms Holt at Tcpt, p 197 (recited at [311] above) requires some comment. First, the representations about which the purchaser/occupiers complained were representations made by Kirsty Simons, Peter Simons and Tanya Hickling. They were not representations by Ms Holt. Further, in the light of the direct evidence given by the purchaser/occupiers, the failure to test what other statements were made other than "we don't count the days" is significant.
The statement that "we don't count the days" was a statement made only if one of the purchasers/occupiers enquired about the reference to the 180 day limit or the 28 consecutive day limit. It did not relate to earlier occasions nor was it said at that earlier time. Those earlier representations were made prior to any of the purchaser/occupiers receiving, for the first time, or reading, the Occupation Agreement.
I have no doubt as to the veracity of the representations to which each of the purchaser/occupier witnesses attested. Most of them were corroborated by other witnesses and, in particular, I accept the evidence of Ms Hayter.
As a consequence of the evidence adduced in cross-examination of Ms Holt, I am satisfied that these representations would have been made and were made to each of the purchasers/occupiers by Kirsty Simons, Peter Simons and or Tanya Hickling, each of whom were "coached" to make the same representations. The similarity in the representations to each of the purchasers/occupiers provides much comfort to the inference and/or conclusion that the representations were deliberate, coached and to the same effect.
The evidence in the proceedings, generally uncontested, together with the inferences available from that evidence has led me to all the following general factual conclusions:
1. Mr Willmott, the third defendant, exercises the central management and control of both the first and second defendants;
2. Mr Willmott and Jonval and Hacienda were each aware that the Marina Villa sites were short-term sites, prior to 2004, for the whole of the period during which this conduct occurred;
3. The Council had only ever approved the sites for the Marina Villas as short-term sites;
4. A short-term site, relevantly, required Hacienda to own any structure on the site and to rent that structure to casual tenants who were permitted to stay no more than 28 consecutive days and no more than 180 days in any one year;
5. Each of the purchasers/occupiers purchased and/or occupied their relevant Marina Villa in the expectation that this was their new home (see [62] above, as an example) for retirement purposes and for permanent residency (see the evidence of Ms Hayter and the summary above at [93], [94], [100], [131], [142], [146], [148], [197], and [209], together with the evidence of Ms Holt summarised at [311]);
6. The Occupation Agreement provided by Hacienda was not available for inspection and/or advice to any purchaser/occupier, nor for them to provide to their legal advisors (if they had any; see, for example, the Sorensons). In the case of the Sorensons, even though Mrs Sorenson accepted that she probably gave the Occupation Agreement to her solicitor for advice, the combination of the evidence of Ms Holt (uncontradicted) and the necessary inference from the letter from the solicitor to which earlier reference has been made, is that the Occupation Agreement was not fully available to the solicitor prior to the purchase;
7. Each of the purchasers/occupiers was discouraged and directed not to utilise a solicitor: see summary above at [66], [155], [201], [212], [213], [244], [245], [287] and [289];
8. None of the purchasers/occupiers have the ability to negotiate the terms of the contract for sale of the UMD or the terms of the Occupation Agreement (except, to some extent, in relation to price): see the summary above at [77], [114] and [197];
9. Each of the purchasers/occupiers had represented to them that they could purchase the marina villas as permanent full-time homes in which they could retire;
10. The foregoing representations were effected in part by express statements and in part by conduct, including silence, in response to the statements of the purchasers/occupiers as to their purpose;
11. Those purchasers/occupiers who enquired about the 180 day limits and the 28 consecutive day limit were told two things: that those clauses did not apply to them but to casuals and that they were not policed;
12. Each of the purchasers/occupiers would not have bought the UMD or paid for the privilege of living at a Marina Villa site were they to have known, prior to purchase, that the Marina Villa could not lawfully be occupied on a permanent or full-time basis;
13. The purchasers/occupiers were induced into entering into the purchase and occupation contracts by the respective misleading or deceptive conduct at the pre-contractual stage;
14. Further to (xii) above, the unconscionable behaviour of each of the defendants, in taking advantage of the inability of each of the purchasers/occupiers to know or easily to discover the unlawful and illegal nature of that which was represented, was a substantial cause of each of the purchasers/occupiers entering into the purchase, the occupation commitments and the renovations;
15. Purchasers/occupiers who undertook renovations, which is most if not all of them, would not have undertaken those renovations, if they had known that they were not lawfully entitled to live in the villa or on the site on a permanent or full-time basis (see summary above at [122], [152], [177] and [257]);
16. The Villas are not "movable" without significant effort and expense, and in some instances an expense greater than the worth of the Villa and without the cooperation and assistance of Hacienda and/or the Homestead Park;
17. The Villas were transported to all the marina sites in two parts and joined at the site and required alterations to the gate and/or other fixed structures in order for them to be erected at the site;
18. Hacienda and Mr Willmott advertised the sites as "retirement living";
19. The Marina Villas were never approved as structures to be located on the Marina Villa sites;
20. Mr Willmott was, as stated at (ii) above, aware of the inability to sell or to occupy permanently the Marina Villas or the Marina Villa Sites but permitted the advertising of same as "retirement living"; the sales of the Villas located on the sites; the offering of an Occupation Agreement that was intended to be used for "permanent living"; and the unlawful use of the sites for profit;
21. The conduct of Mr Willmott, recited in (xx) above, was unconscionable and caused the purchasers/occupiers to undertake expenditure that otherwise would not have been undertaken.
Next, the plaintiff alleges that the Marina Villa Sites were sites that had initially not been approved for occupation at all. After variation, they were part of the Approval to Operate but had been approved only as short-term sites
The plaintiff alleges that in November 2005, the Council informed Hacienda that the 1997 Development Approval did not approve the creation of 10 new sites where the Marina Villas were being installed. The Council, or its representatives, informed Hacienda that they would need to apply for a modification or alteration to the Development Approval to allow the Marina Villa Sites to be approved. Once the Marina Villa Sites were approved, Council would consider applications for structures to be placed on the sites.
The plaintiff alleges that no approval had been given for the placement of any structure on the Marina Villa Sites, even though the sites themselves were, ultimately, the subject of approval. Further it alleges that, by operation of the law, work must stop on the installation of any structure until the approval is given and occupation must not occur.
Hacienda and/or Mr Willmott lodged an Application to alter the (1997) Development Approval to allow the relocation of 10 caravan park sites by forfeiting 10 existing sites within Hacienda Park to create usable sites at the Marina Villa Sites area.
At no material time, according to the plaintiff's Claim, did Hacienda obtain approval for the Marina Villas to be placed on the Marina Villa Sites.
In relation to the purchasers/occupiers of the six Villas that were in issue in the proceedings, the plaintiff alleges that the defendants engaged in misleading or deceptive conduct (including conduct likely to mislead or deceive). The specific conduct in relation to each set of occupiers is slightly different and reflects, as one would expect, the evidence of representations made to the occupiers. Each of the representations upon which the plaintiff relies is a pre-purchase representation that, according to the plaintiff's Claim, induced the plaintiffs to purchase/occupy the UMD on the site.
The purchasers/occupiers relied upon the representations by the defendants and bought the UMD and signed the Occupation Agreement on the basis that each was, either immediately or eventually, to be living full-time and/or permanently on the Marina Villa Site.
The plaintiff alleges that the defendants did not have reasonable grounds within the meaning of the ACL (or its predecessors) for making representations that it alleges and, as a result of the representations and the reliance by the purchasers/occupiers on the representations, the purchasers/occupiers suffered damage. The damage claimed in the Amended Initiating Process includes the purchase price of the Villa, the cost of renovations, the opportunity to buy in the market at the time that has now been lost and the loss of opportunity to resell.
Further and above the foregoing, the plaintiff alleges that the defendant, Jonval, provided credit in circumstances where they had not complied with or been registered under the relevant legislation.
Further to the foregoing, the plaintiff alleges, as is obvious from the foregoing paragraphs of these reasons for judgment, that the defendants engaged in unconscionable conduct. In the case of the defendant Willmott, the plaintiff alleges that Mr Willmott acted unconscionably in advertising or permitting the advertising of the Marina Villas or the Marina Villa Sites for sale in circumstances where it was represented by him, Hacienda and/or Jonval that the Marina Villas could be used for "retirement living" and the representations that the Marina Villas could act as a home for retirement purposes of the purchasers/occupiers. Further again, it was unconscionable conduct for Mr Willmott to require documents to enter into the sale and Occupancy Agreements in the circumstances disclosed in the evidence.
In circumstances where Mr Willmott knew of the Council prohibitions; the lack of requisite Council approval for the fixing of that particular Villa to the Marina Villa Site; that the permanent fixtures (plumbing, electricity et cetera) represented that the Marina Villas were permanent residences; knowing, also, that the consumers intended to reside in those places permanently and/or full-time; knowing that no Approval had been given at the time of entry into the sale of the UMD or the Occupancy Agreement; that, without approval, the consumers could lawfully abide in the villa; the representations and the requirement that consumers purchase UMD's and enter into an Occupancy Agreement was unconscionable conduct.
In the case of Jonval, the plaintiff alleges that it acted unconscionably by permanently fixing the Villas to the sites and entering into sales contracts and receiving the purchase price in circumstances where it knew of the Council prohibitions; the lack of requisite Council approval; that the permanent fixing made the Marina Villas look like permanent residences; that the purchasers/occupiers intended to reside in the Villa permanently and/or full-time; that no Approval had been given at the time of entry into the sale of the Villa or the entry into the Occupancy Agreement; and that, without approval, the purchasers/occupiers could not lawfully reside in the Villa.
In the case of Hacienda, the plaintiff alleged that it engaged in unconscionable conduct in contravention of the legislative provisions, by requiring Occupancy Applications from purchasers/occupiers; entering into the Occupancy Agreement itself; receiving weekly park fees and otherwise conducting the Hacienda Park, in circumstances where Hacienda knew: of the Council prohibitions; the lack of requisite Council Approval; that the permanent fixing made the Marina Villas look like permanent residences; that the purchasers/occupiers intended to reside in the Marina Villas permanently and/or full-time; that no Approval had been given at the time of the sale of the UMD and/or the entry into all of the Occupancy Agreement; and that, without Approval of the Council, the consumers could not lawfully abide in the Villa on a permanent or full-time basis.
While dealing with these issues, it is necessary for the Court to comment that the plaintiff read the Affidavit of Ms Fabiola Campora, Affirmed 29 May 2018, by [23] of which, Ms Campora, referred to evidence served by the defendants on the plaintiff being an Affidavit of Mr Willmott and draft Affidavits of Ms Tanya Hickling, Mr Peter Simons and Ms Kirsty Simons. None of those persons were called in evidence (as earlier noted).
Dealing with the substance of the defendants' case, it first deals, somewhat theoretically, with the meaning of the representation of "permanency" or the meaning of the term "permanently" or "permanently occupied". Essentially, the defendants submit that nothing is "permanent".
The term permanently or permanent is not used in the sense of "forever". Rather, the context of the pleading and the context of the "evidence" is to use the term in contradistinction to "casually", or as holiday accommodation, in a similar but not identical way to the use of the term in the expression "permanent employment".
The term "permanent occupation", in the context of the proceedings before the Court in this matter, is used as meaning full-time and indefinite. In that sense, the term refers to something that "happens all the time" or "remains unchanged indefinitely".
The Australian Concise Oxford Dictionary (H. Moore, Australian Concise Oxford Dictionary (4th ed, 2003)) defines "permanent" to mean "lasting, or intended to last or function indefinitely". The Macquarie Dictionary (A. Delbridge, The Macquarie Dictionary (3rd ed, 1997)) refers to additional meanings of "remaining unchanged; not temporary; enduring; abiding". The Unabridged Oxford defines the term as "continuing or designed to continue indefinitely without change". It is that last definition that is most fitting for the context of these representations. The fact, if it be the fact, that land may be compulsorily acquired by government, or sold to a developer, for example, does not assist the defendants.
In the case of each of the occupiers to which these proceedings relate, their evidence is uncontested, that, in the context of an enquiry about a retirement home or not living at a holiday home or otherwise, see summary above, the conduct and statements of representatives of the defendants, at the behest of the third defendant, Mr Willmott, was that each of the occupiers, when they so chose, could live for as long as they so chose, without interruption, and/or all the time.
In the case of the plaintiff's claims for unconscionable conduct, the defendant summarises the plaintiff's pleadings in a manner, which does not accurately reflect the total extent of the pleadings, for the purpose of demolishing them. The pleaded case against Hacienda and Jonval is that they acted in concert and, in the case of Jonval, they sold the Marina Villas knowing the circumstances of each consumer and Hacienda rented or licensed the sites, again, knowing the circumstances of each potential occupier and that their conduct was unconscionable in that there was no Council approval for those Villas to be erected on those sites and for those sites to be used other than on a short-term basis.
As has been made clear, earlier in these reasons, whatever approval had been granted by the Council, that approval allowed the Marina Villa sites to be used only for short-term sites. Further, whether the approval existed at all for the erection of a Villa on those sites, which depended on an understanding of the approval letter from Council, the structure erected on each site in the draft plan to which the letter referred, was not a structure which accorded with, in each case, the Villa located on each Villa site.
The representations as to permanent fixing are in evidence. Ms Kirsty Simons told Mr Denley, in answer to an enquiry as to whether the villas were transportable, that they were not and that they were "concreted to the ground". Thereafter, Mr Denley inspected the Villa and the sites and confirmed that representation.
Similar observations were made by Mr Hodson, Mr Pestridge, Ms Timms, Mrs Hannah, Ms Sorenson, Mr Hamilton and Mrs Hamilton.
There is also the issue of the "vendor's finance", which seems to have been provided by Mr Willmott, through Jonval, to each of Mr Pestridge and Mr Denley. The contracts, to the extent that they are before the Court, do not accord with any of the legislative requirements and, it is accepted by each party that none of Mr Willmott, Jonval and Hacienda are registered for the purpose of providing finance.
The defendants submit that it cannot be unconscionable to enter into contracts that were "fully performed". The fact, if it be the fact, that each occupier lived on the premises "permanently" (or was able so to do) does not render the representations and the making of the contracts not unconscionable.
First, the contracts (subject to alterations seemingly effected by one or other occupier) provided for limitations on the duration of any stay in any one year and on any consecutive basis. Secondly, they were only "fully performed" because the defendants represented that the occupiers could conduct themselves in that way and in so doing represented that Hacienda and/or Mr Willmott would behave unlawfully and encourage the occupiers to behave unlawfully, in circumstances where the occupiers were, at the time of the representation and the decision to enter into the contract, unaware that the conduct was unlawful.
It cannot be the situation in law that a party can represent, other than unconscionably, that conduct can be performed, inconsistent with a contract, in circumstances where the conduct was, even apart from the breach of contract, unlawful and prohibited by law. Such a representation, inducing, as it did, the purchasers/occupiers into purchasing the goods, must be unconscionable.
Next, the plaintiffs rely upon the approval of 26 October 2006, to which earlier reference has been made. As already indicated, the defendants' reliance upon that approval is misplaced. But, even if they were able to rely upon that approval as an approval for the placement of Villas, they would have to be Villas that accorded with the plans submitted. There is no suggestion that the structures on the Marendy plans disclose the structures ultimately erected on the sites.
Nevertheless, as already indicated, the approval granted on 26 October 2006 was an approval for the "sites", not the structures thereon.
The defendants admit that, in light of the letter of 26 October 2006, it cannot be said, nor can the Court be satisfied, that the defendants "knew" that the Villas were not approved for those sites. That submission of the defendants, which relates to all the knowledge of the defendants, is unsupported by any evidence. The defendants have chosen not to adduce evidence as to the state of mind or knowledge of Mr Willmott who, relevantly, is the controlling mind of the corporate defendants.
Secondly, the submission is inconsistent with the evidence otherwise adduced, being notes of meetings and correspondence between Mr Willmott, on the one hand, and Council representatives on the other. While it is accurate to suggest that the Council was attempting to find some process, which could overcome the impasse between the defendants and Council, it is also obvious from the correspondence and the meetings that Mr Willmott was aware of the three stage process necessary to obtain approval of the Marina Villas to which the Council representatives attested in evidence.
That three stage process was the subject of evidence from Mr Ainsworth (and others) and required: first, development consent (or an amendment to current approval that already existed), relating to the approval to operate; secondly, there was a need to obtain development consent approval, in relation to any boundary adjustments; and, thirdly, approval under s 68 of the Local Government Act was required to relocate (or to locate for a first time) an individual structure on the particular site.
The evidence, as a whole, makes it abundantly clear that Mr Willmot was aware of that three stage process and, most importantly, was aware: first, that the Marina Villa sites were, once approved, approved only for short-term purposes; and, secondly, that the particular structures located on each of the Marina Villa sites had not been approved at all. It was the application by Mr Willmott that sought the approval of the sites as short-term.
It is simply inaccurate to submit that neither Hacienda nor Council had ever enforced or policed the limitation clauses. The defendants reserved to themselves the ability to enforce the contract as was disclosed in their attitude to the purchasers/occupiers during, or as a result of, the NCAT proceedings. Even if it were correct, it would not render the conduct other than a misrepresentation and/or unconscionable.
If there were to have been a failure to enforce, it speaks only of the resources and/or desire of Hacienda or Council. It does not render the conduct of Mr Willmott, Hacienda (or Jonval) lawful or any less unconscionable.
Mr Willmott, Jonval and Hacienda were charging money to persons for goods or services they were purporting to provide in circumstances where they had no legal capacity to provide those goods or services. Such conduct is, almost by definition, unconscionable and, to the extent that the services that were purported to be provided were the subject of representation, either by statement or conduct, that the services were capable of being provided or were to be provided, such representations were either by statement or conduct, necessarily misleading or deceptive.
Not only are the permanency representations made out, they were misleading and deceptive. The fact, if it were the fact (which it is not), that no attempt was made to enforce a lack of permanency, does not make the representations any less misleading or deceptive.
The submission of the defendants, as to the failure of the plaintiff to make out its case, confines that case to some evidence only and, in so doing, ignores the evidence of representations that go beyond the policing and enforcement of the limits that were prescribed in the Occupation Agreements.
Next, the defendants rely upon the series of letters which notify Hacienda and Mr Willmott that there were no "outstanding matters". On a subjective basis, if that be the purpose of the submission, it cannot be said at the time those letters were written and delivered that Mr Willmott or Hacienda was under any illusion as to the outstanding issues relating to approval and the short-term nature of the Marina Villa sites.
Secondly, to the extent that the letters are relied upon as "objective" evidence of approval of the sites, they do not withstand even the mildest of scrutiny. The contentious letters referred to "outstanding matters". The evidence before the Court was that it related to cleanliness, toilet facilities and the like, painting, and general areas of dilapidation. It was not intended to deal with matters of contention between the Council and the operator.
Further, it could not be said that the issues of approval were "outstanding". They were the subject of current exchanges of correspondence and meetings.
Clearly, the meaning of the term "outstanding", in the context of the relevant letters, does not refer to something that is "excellent" or "stands out". It is intended to be a reference to matters "that have not been resolved or dealt with" and need to be.
As a consequence, "outstanding matters" would not detail those matters with which Council were already dealing. The Marina Villa sites (and the erection of the Marina Villas) were matters with which the Council was already dealing.
Ultimately, the matters upon which the defendants rely to answer the evidence adduced on behalf of the plaintiff and their claims do not withstand scrutiny. The plaintiff's case has been made out. The Court is satisfied that each of the defendants has engaged in misleading or deceptive conduct and conduct that is unconscionable within the meaning of the statute.
There are other issues that should be clarified. Some minor attention was given to the contractual relations between Hacienda, on the one hand, and Ms Hickling, Mr Simons and Ms Simons, on the other. Based on some evidence of Ms Holt, the defendants submitted, it seems, that these persons were not employees. The evidence is not sufficiently detailed to conclude the nature of the relationship. But it matters not. The ACL provisions (and the pre-2012 FTA provisions) apply to "agents" as well as "employees". Each of the named workers (or staff in the office) were agents of Jonval, Hacienda and Mr Willmott for all relevant purposes.
The Court has already dealt with the nature of the representations. Even so, it is necessary to detail, once more, the pre-contractual context for each purchaser/occupier.
Ms Timms was knowingly seeking retirement living. She was told the clauses that limited occupancy duration did not apply to her and that the duration, in any event, is not monitored. The Sorensons made it clear, also (as did all of the purchasers/occupiers), that they were seeking a place "to live in their retirement".
In relation to the Hannah Villa, the Hannahs made it clear that they wished to live there on a "permanent" basis and said they intended "living [t]here permanently". Mr Hamilton made it clear he was to live there "permanently with his wife". It was Mr Hamilton who, apart from the usual representations as to permanency, was told that the owner "had been [t]here for 25 years" and was not moving.
Mr Denley, like Ms Timms and others, was told that the duration limitations did "not apply". He has not made loan payments since 16 October 2014. Mr Hodson was told that he could live there permanently and "as long as [he] like[s]". Mr Pestridge, after being re-assured as to permanency, was advised as to the parking for two cars and that he "could stay as long as … [he] … like[s]"; and that the 180 day limitation was "only for people with holiday units" and that he "can stay as long as … [he] … like[s]".
The similarity in the representations by Mr Simons, Ms Simons and Ms Hickling are startling and give verisimilitude to the content of the representations and the evidence that the staff were coached in what to say. It also makes more relevant the direction to Ms Holt that, beyond the matters on which she was coached, she was to refer enquiries to Ms Hickling.
Earlier in these reasons the Court referred to the cross-examination of the witnesses, with particular reference to Ms Sorenson (see [132]-[133] infra). It is appropriate, although ultimately unnecessary for the findings, to refer to the issues raised as to the purchase of the UMD and the ability to move them or sell them.
First, I accept the evidence that the "homes" could not be moved easily, or at all without major work: the disconnection of services; the separation from concrete footings; and the division of the home into at least two parts (being the way they were installed). Further, at the same practical level, the consent and co-operation of Hacienda (and Homestead Park) would be required.
On a contractual level, the propositions put to the witnesses do not withstand scrutiny. First, cl 23 of the Occupation Agreements prevents the occupier from selling the "movable dwelling" while it is on the site without the prior written permission of the Park owner (or an order from what is now NCAT). As a consequence, the proposition, put by Counsel, that an occupier could move or sell a dwelling is, in its terms incorrect.
Secondly, under cl 47 of the Occupation Agreement, the occupier had agreed: to install any movable dwelling and any additions as directed by the Park owner (cl 47.10); not to install and movable dwelling other than the one prescribed by the Schedule (cl 47.2); and not to bring any other dwelling onto site without the agreement of the Park owner (cl 47.4). By cl 49, the occupier agreed to maintain the dwelling in a condition satisfactory to the Park owner; and, by cl 50, the occupier was not entitled to build, extend or alter the dwelling on the site without the Park owner's permission.
The combination of the foregoing contractual obligations required the Park owner's consent for sale, removal, alteration or extension of the dwelling specified in the Schedule. Thus, both practically and contractually, no occupier could sell or move a dwelling without express consent. It was misleading and inappropriate, given those contractual limitations, to suggest that any occupier could sell the dwelling; or to move it. Each required the consent of Hacienda and Mr Willmott.
While dealing with the nature of the contracts, it is necessary to repeat that each Occupation Agreement specified, in the "Schedule" thereto, the villa that was supplied. The Sale Agreement was part of an intertwined collateral arrangement. The Sale Agreement referred to the villa by its site number e.g. Ms Timms was sold "Marina Villa 8" (cl 1). Further, the Sale Agreement was to be "cancelled" if the purchaser was not approved as an occupier of Hacienda Park (cl 11 of the Sale Agreement) and provides, somewhat incongruously, that the "Park owner" grants the purchaser "the right to hire out" the dwelling (Sale Agreement, cl 12): see, for example, Exhibit C1 at pp 19-20.
Next, it is necessary to deal with the issue raised about whether the Hodsons or Hamiltons were consumers. This, it seems, relates to the fact that the Hodsons purchased the dwelling through their Superannuation fund Trust and they and Mrs Hamilton were renting out the premises (Mrs Hamilton living for a significant time in South Australia to be with family).
The definition of "consumer" in the ACL is contained in s 3 thereof. The dwellings are ordinarily acquired for "personal, domestic or household use": s 3(1)(b) of the ACL. Similarly, the licence of the site: s 3(3)(b) of the ACL (if it is a licence) is a service.
By the provisions of s 3(2) of the ACL, the definition does not apply if the goods are acquired "… for the purpose of re-supply": s 3(2)(a) of the ACL. That exception does not apply to the provision of services.
The express purpose of each of the Hodsons and Mrs Hamilton was for the purpose of living in the dwelling in retirement. It was not for the purpose of re-supply by rental or otherwise. As a consequence, the evidence is that the purpose of each of them is not re-supply.
As to the interposing of the Superannuation Trust, there is no evidence as to its functions or its structure. However, given the current state of the law, the Court can assume that it is a trust, the beneficiaries of which are the Hodsons. It seems, although the evidence is not significant, that at least Mr Hodson is a Trustee.
The interposing of a trust as the purchaser of goods for a beneficiary does not necessarily involve a re-supply. There may be some circumstances where it does, but it is for the defendants to show that the Hodsons were not consumers: s 3(10) of the ACL. They have not shown that.
Further, the occupation by the Hodsons is not a "re-supply" of the dwelling. It is the use of the dwelling other than by way of "sale, exchange, lease, hire or hire-purchase". This argument of the defendants fails.
The foregoing conclusions apply equally to the ACL, the ACL (NSW) (if it be different) and to the pre-2012 Fair Trading Act, at least at all relevant times.
Apart from the foregoing, and in addition thereto, the Court accepts fully the plaintiff's written submissions on the conclusions of fact and on the operation of the law and does not need to deal separately with any other issue and, except as indicated hereafter, as to the orders to be made, makes all the findings sought and in accordance therewith.
Despite the conclusions reached by the Court as to the involvement of Mr Willmott in the misleading or deceptive conduct (see ss 239(1)(a)(i) and 239(2)(a) of the ACL and also s 72(1) of the FTA), and to the collateral nature of the arrangements, or that each of the defendants were acting in concert, the plaintiff puts its case much more narrowly. It seeks orders against Mr Willmott only on the basis of unconscionable conduct.
I have already made clear that Mr Willmott, on the evidence before the Court, has acted unconscionably (see 447 and (xxi) infra). My general statement at [524] particularly applies to the plaintiff's written submission at [128] and following. The foregoing is not intended to limit my adoption of the plaintiff's submissions at [524], infra.
Before dealing with the appropriate orders, it is necessary to acknowledge that the allegations of conduct that amount to misleading or deceptive conduct or unconscionable conduct are extremely serious, and require an appropriate level of satisfaction: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. I am so satisfied.
Further, I am also satisfied that purchase of the villas and, in large measure, the improvements to the site were performed as a result of the misleading or deceptive conduct or unconscionable conduct and the belief, in the mind of each of the occupiers, that they were able lawfully to live, in retirement, in the Marina Villa and on the Marina Villa site.
The foregoing reference to "in large measure" is a reference, particularly to the situation of Mr Pestridge, who carried out some of the work after he had become aware of the issues with permanency. He did that for his own comfort. But that applied only to some of the renovations (Tcpt, pp 151.40-152.4).
Nevertheless, there is some evidence that some of the alterations have been made even though the occupier or occupiers were aware of the legal position in relation to the sites or the risk of it. There is also a natural inference available that the improvements that were made increased the enjoyment of each of the occupiers of the premises.
It seems, given the lapse of time that has occurred since the purchase and these orders, the compensation that should be provided for the improvements that were made to the sites and/or the Villas, should be reduced to take account of the purchaser/occupier enjoyment of the better facility. Of course, if the villas are returned to one or other defendant, the defendants will have the benefit of those improvements in their business and in renting out these holiday sites. The reduction should be minimal and I assess that compensation should be awarded at 85% of the costs incurred. Pre-judgment interest will apply from the date the expense was incurred at the same rate as post-judgment interest.
The defendant submits that the Court should not award damages, because the occupiers have "enjoyed" the benefits of their purchase and can continue to "enjoy" the benefits, because the restrictions are not "policed". This is the other side of the coin of the submission that the Court should lend itself to an illegal or unlawful occupation, which would be contrary to law. The Court will not.
The "benefit enjoyed" by each of the occupiers is significantly diminished by the stress and anxiety that has been inflicted on the occupiers after they learnt of the precarious situation of their occupation. Each of them, either expressly or in the demeanour of their evidence, disclosed a significant level of anxiety as to the situation in which they were placed. I do not consider that what they have been given is a "benefit". Nor do I consider that they have "enjoyed" it.
More importantly, each of the occupiers has paid rent to Hacienda for the occupation of the Villas. That rent is the payment for the occupation of the site and adequately compensates, in the circumstances, for the "benefit" that the occupiers have "enjoyed". The level of rent is greater than for other sites, of which evidence has been adduced. The Council requirements provide that those Villas be owned by Hacienda Park and rented casually, if the 180 day limit, contained in the Occupation Agreement, is to apply.
The defendants raise, as a matter of principle, the inability of the Court to grant relief of the kind sought by the plaintiff for two reasons. The first reason is that there was no consent by each of the occupiers. The evidence before the Court is that there is such consent; it has existed for as long as the proceeding has been conducted; and the written consents were adduced in evidence in reply to the defendants' submissions on this issue.
Next, the defendants submit that the basis of the orders that can be made should be the restoration of the occupiers to the position which he, she or they would have been in but for the actionable conduct. I agree with that submission in part, that is the reason that no orders will be made for the repayment of the rent.
Further, it is not the intention of the Court, in awarding the damages in this proceeding, to provide damages that would enable the occupiers to purchase that which they could have purchased at the time that they purchased the Marina Villa. As a consequence, it is not the "disappointed expectations… induced by a misrepresentation" that is compensated. It is the payment that was made as a result of the misrepresentation and the direct consequential losses associated therewith.
The major aspect of the opposition to damages and/or compensation that repays the price of the Marina Villas is that the defendants submit that the measure of damages cannot be on the basis that the purchase of each and registrable movable dwelling is to be "void ab initio". This submission is put on two bases: first, it is not possible to postulate a hypothetical alternative scenario (see Gates v City Mutual Life Assurance Society Limited (1986) 160 CLR 1, at 13-14; [1986] HCA 3).
Secondly, it is not possible to do so on the basis of a hypothetical alternative scenario, because there is no evidence suggesting what any of them would have done. In so submitting, the defendants maintain the proposition that the plaintiff is seeking damages on the basis of a "no transaction" case in circumstances where that which is alleged is that each occupier and/or purchaser would not have entered into "this specific transaction" to which, the defendants allege, the "no transaction" rules do not apply.
Current authority is to the effect that it is not necessary, albeit that it may be helpful, for a plaintiff in a "no transaction" case to prove the alternative transaction that would have been undertaken. It is sufficient for the plaintiff to prove (assuming it is the plaintiff that seeks the damages for himself, herself or itself) that the plaintiff would not have entered into the particular contract or transaction: Westpac Banking Corporation v Jamieson & Ors (2016) 1 Qd R 495; [2015] QCA 50 at [146], [147].
In Cummins Generator Technologies Germany GmbH v Johnson Controls Australia Pty Limited (2015) 326 ALR 556; [2015] NSWCA 264, the then President, Beazley P (with whom Gleeson and Leeming JJA agreed) said, at [133]:
"In my opinion, the trial judge was correct in stating that there was no strict requirement to prove a 'no transaction' or 'different transaction' case. Rather, it is necessary for a party to prove that in reliance on the misrepresentation it acted in a particular way that caused it loss and to then prove the quantum of that loss. That involves a consideration of the particular circumstances in which the conduct that caused the loss occurred. This was demonstrated in the recent decision of the Queensland Court of Appeal in Westpac Banking Corporation v Jamieson [2015] QCA 50."
In so stating, the Court of Appeal explained the judgment of the High Court in Gates, supra. Reliance by the defendant on Gates is misplaced.
In Gates, the plaintiff was seeking the benefit of an insurance policy that did not exist and could not prove that, in the absence of the transaction to purchase the insurance policy he did purchase on the basis of the representations made as to the existence of such a benefit, he was entitled to that benefit. He may have been entitled, if he were to have shown that, in the absence of the representation, no insurance policy would have been executed, to the return of the premiums. That is analogous to what is sought by the plaintiff, on behalf of the purchasers/occupiers in these proceedings.
The purchasers/occupiers are not entitled to an order, assuming for present purposes that the Court were capable of making such an order, to the effect that they can live permanently in the Marina Villas on the Marina Villa sites. Such an order would be the equivalent of seeking the benefits of an insurance policy that did not exist.
Further, the plaintiff is not seeking, on behalf of the purchasers/occupiers, damages that would put them into, or enable them to pay for, similar accommodation on a similar site in a similar location. Rather, the plaintiff is, on behalf of the purchasers/occupiers, seeking to obtain the purchase price of the Marina Villas, which purchase price was paid as a result of the representations made by, and the unconscionable conduct of, the defendants.
The purchasers/occupiers are entitled to that compensation.
Further, the damage/compensation for each occupier/purchaser will include interest on the monies expended on the purchase from the date of purchase until the date of judgment at the rates prescribed for post-judgment interest, under the Supreme Court Rules 1970 (NSW) and, of course, will include post-judgment interest.
In the case of those persons who were provided vendor finance, the amount of purchase will be reduced by the amount of principal provided by the vendor (or any one of the defendants) and the interest will run on the remainder. Further, the compensation will include the cost of the finance, being any interest and/or charges occasioned by and paid under the loan transaction. To the extent that there are loan contracts, not otherwise void by operation of law, an order will be made declaring the loan contracts void.
The provisions of s 237 of the ACL and s 72 of the FTA apply to the awarding of compensation. The parties submit that there is no basis for any apportionment to the purchasers/occupiers, except to the extent that the "compensation" is not for a loss: see reference to Mr Pestridge at Tcpt, pp 151.40-152.4. Otherwise, the defendants are each responsible, by their conduct, for the whole of the damage. The compensation will be paid jointly and severally and shall not be apportioned. Further, the defendants shall pay the plaintiff's costs of and incidental to the proceedings.
Two other issues require attention. First the contracts for the sale of the villas will not be "voided". The Court will require an undertaking from each of the purchasers/occupiers to transfer to Jonval the villa that each owns. The compensation payable by the defendants will include any stamp duty originally paid or to be paid on the transfer required by the undertaking. The undertaking will require transfer within three (3) working days of the payment of the compensation.
Secondly, there is an issue as to the damages to Mr Pestridge for depression. I accept he has suffered depression as a result of the conduct of the defendants. The provisions of s 72 of the FTA do not permit an award of compensation for any "personal injury", which, in my view, includes psychological injury. Such compensation will not include an amount to compensate his depression.
I will grant leave to the parties to apply for costs to be on a basis other than party-party costs or on a different basis to that indicated above. Such application shall be made by 10 February 2020 and will include any submissions or evidence in support thereof. Any such application and submission may be answered by any party affected by any such application within two weeks of its receipt. The issue of costs will be dealt with on the papers. The submission shall be no longer than five pages (excluding any evidentiary material relating to costs).
The Court directs the plaintiff to serve the defendants, through its solicitor, with a draft minute of order reflecting the foregoing reasons for judgment by 10 February 2020 and to file in court, by email to the Associate to Justice Rothman, by 24 February 2020, such draft of orders, or the minutes of order reflecting any agreement thereon between the plaintiff and the defendants.
To the extent that there is no agreement that the draft minute of order reflects the foregoing reasons for judgment, the defendants shall file any proposed minute of order prescribing that which they submit reflects the foregoing reasons for judgment by 4pm on 24 February 2020.