//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2004] NSWSC 67
Supreme Court of NSW
2003-09-29
Sperling J, Ms J
Original judgment source is linked above.
Background facts 9 A convenient way of presenting the background of the case in further detail is to quote from the document "Plaintiff's contention of fact", submitted by counsel for the plaintiff in final address. In doing so, I have edited out some passages which prove not to be material and other passages which are contentious or are better treated as argument. I apprehend that what is now quoted is common ground. The Park
· Banora Point Caravan Park (also known as Tweed Waters Tourist Park) ("the Park") is located at 2 Pacific Highway, Banora Point, on the banks of the Tweed River and comprises some 10 acres. It is a "residential park" within the meaning of the Residential Parks Act 1988, in that it is a "caravan park". It is made up of a mixture of relocatable housing, cabins and caravans. Some 39 residents own their own homes which are installed on sites at the Park, and the balance of the total of 200 sites are occupied by people who rent cabins and vans belonging to the Park. · The Park is laid out on a narrow strip of river-front land at Banora Point. At the southern, road-front section, is the Park entrance, office, caretaker's cottage and boom gates. There is a low brick wall about three-quarters of the way along the park which marks the boundary of what is referred to in the evidence as the "relocatable section" - that is, a section of the park which was formerly comprised mainly of relocatable homes owned by permanent residents. The relocatable section takes up the most northerly quarter of the Park. The balance of the Park is made up of internal roads, along (and upon) which are placed caravans, cabins, and some relocatable homes. A map of the Park became Exhibit A. The Parties · The plaintiff was formerly known as the Director-General of the Department of Fair Trading, but that Department has, since the commencement of these proceedings, been subsumed into the Department of Commerce. The plaintiff is now known as the Commissioner for Fair Trading. The consents required by the provisions of the Fair Trading Act for the orders sought in these proceedings are annexed to an affidavit of Michael Robert Finch made on 3 February 2003. The Minister for Fair Trading administers both the Fair Trading Act and the Residential Parks Act, and the plaintiff is able therefore to bring these proceedings with the consent of the Minister. · The first defendant, Warren Eric Tschannen, is sole director and secretary of Blackington Pty Ltd ("Blackington"), the second defendant. Blackington Pty Ltd is the entity which manages the Park. Ms Helen Randell, who took no part in the proceedings, is the owner of the shares of Blackington. · The third defendant, Caraco Pty Ltd, ("Caraco") owns the land upon which the Park Is located. Mr Tschannen is sole director, shareholder and secretary of Caraco. · It is common ground that the second and third defendants are each Park Owners within the meaning of that term as defined in s 3(1) of the Residential Parks Act. · … … … Mr Tschannen is the Operations Manager, an appointment which appears to come within the definition of "Park Manager" in s 143(1) of the Act. The Residents · The residents of the park hold either residential tenancy agreements or are "casual" occupants of the Park. Those who hold residential site agreements are those persons who own their own relocatable homes or caravans with rigid annexes, and these were referred to during the hearing as "owners". The balance of occupants, most of whose occupancies are subject to the Residential Tenancies Act, were referred to as "tenants". There are 39 persons, plus the Park gardener, who hold residential site agreements. When Mr Tschannen bought the park in 1997, there were 148 owners, some 20 vacant sites and about 32 tenants. The downturn in numbers of owners is consistent with Mr Tschannen's expressed desire to free up the sites occupied by owners to give him more flexibility to redevelop the Park as an "eco sports resort". If such a resort were approved - and the evidence is that it is not anywhere near achieving planning approval from the Tweed local council and/or Planning NSW - the Park Owner would have to pay compensation as set out in the Act to those residents holding residential site agreements. Park Rules · In addition to the terms of the agreements between the residents of the Park and the defendants, the Park Owner is able to regulate his relationship with the residents by way of Park Rules. A bundle of the relevant Park Rules (with the omission of some repetitive removals and insertions of the same rule) was Exhibit G in these proceedings. A summary of that exhibit is as follows:- 1.1. 1996 Park Rules • These rules were inherited from the previous owner when Mr Tschannen bought the park. 1.2. 1999 Park Rules • An amendment to the 1996 Park Rules was issued on 27 July 1999, to take effect as from 1 October 1999. • Amendments included provisions about parking and garbage. • Under this amendment, visitors in the relocatable section were required to park their vehicle "on the road directly in front of the resident's site they are visiting or in the designated visitor parking areas within the park" ("the relocatable section visitor parking rule"). 1.3. 2002 Amendments • An amendment to the Park Rules of 1 October 2002 was issued on the 31 May 2002, to take effect on 2 August 2002. • In this amendment there was a provision prohibiting parking on the road at any time. • Included in this document is a section entitled "Amendment to Park Rules of 29.07.02" which purported to take effect on 29 July 2002. A provision herein stipulates that "No fences are permitted". • A further amendment to the Park Rules was promulgated on 9 August 2002 in the Village News. The amendment purported to come into effect on 18 October 2002. This amendment repealed the relocatable section visitor parking rule. • An addition to Park Rules of 2 August 2002 took effect on 8 September 2002. This addition involved changes to the use of the gym. • An amendment promulgated on 18 October 2002 in the Village News reinstated the relocatable section visitor parking rule. • On 20 December 2002 a further amendment to the Park Rules once again repealed the relocatable section visitor parking rule. 1.4. 31 March 2003 Park Rules • This is the most recent set of park rules as produced on subpoena. These rules include the relocatable section visitor parking rule again. Mr Tschannen gave evidence that he had attempted to exclude this rule three times, but on each occasion the rule had been disallowed by the Tribunal.
Litigation concerning the Park · It is fair to say that the Park is responsible for a great deal of litigation. Deirdre Dowsett, a Tenants' Advocate, gave evidence that since January 2001, 108 of the 161 appearances of the Northern Rivers Tenants Advice and Advocacy Service (operated under the auspices of the Northern Rivers Community Legal Centre) in relation to caravan park matters have been matters arising out of the Park. There are approximately 70 caravan parks in the area. About 75% of Ms Dowsett's time over the last 3 years has been taken up with dealing with matters arising from the park operated by the defendants. Mr Murphy, of the Tweed Heads Fair Trading Centre, gave evidence of the workload engendered by the Park. Neither of these witnesses were cross-examined. · The litigation started early in Mr Tschannen's involvement in the Park and continues to the present day. [...] Mr Tschannen admitted that he was usually the author of the "Village News", a newsletter which contained both news and management opinions, occasionally expressed in very strong terms. […] · A list of the matters before the Tribunal which form part of the evidence in these proceedings shows the number, width of subject, and success rate of the proceedings taken by the residents:- • Mr Adams - orders on 10 December 2001 for access to the Park for himself and medical and community service visitors; and on 7 August 2002, setting aside a Park Rule and reinstating the former rule allowing visitor parking in the relocatable section of the Park; • Ms Bishop - orders on 19 October 2001 that the Park Owner consent to the assignment to her of the • Mr Flanagan - order on 16 May 2001 that the Park Owner had failed to comply with an order of the Tribunal that the 1999 rent increase not be enforced, and on 10 December 2001, an order that he be granted an access card; and on 27 December 2002, an order that he be provided with an access card that operated to open the boom gates (since the one provided in accordance with the previous order did not, in fact, work); • Mr Heskey - order on 23 May 1999, residential site agreement relating to site 88; • Mr Dumbleton - orders on 5 March 2001, that the Park Owner consent to the transfer to the Jacksons of the residential site agreement relating to site 233; • Eleven residents, including witnesses Mr Tacke, Mr Kelly, Mr Flanagan, Mr Skennar, Mrs Knight and Mrs McGowan - orders on 6 December 2000 that the 1999 rent increase was excessive; • Six residents, including witnesses Mr Pollard, Mr Hogg, Mr Shepherd, Mr Jones and Mr Dumbleton - orders on 6 December 2000 that the 2000 rent increase was excessive;confirmed on rehearing on 7 June 2001, that he be granted compensation by way of rent reduction for loss of use of a portion of his site by the Park Owner placing a cabin's carport over part of the site. On 5 September 1001 the Tribunal made an order of $347.00 in lieu of rent reduction as Mr Heskey had then moved; • Mr and Mrs Hill - order in 11 August 2000 that the Park authorise alterations approved by Council to the carport on site, and on 7 February 2001, an order that the Park compensate the Hills. On 10 December 2001 an order that the Park issue them with an access card. On 27 September, 2002 - that the Park complete plumbing work; • Mr and Mrs Hogg - order on 13 December 1999 that the park owner consent to an assignment from the Hendersons to them of residential site agreement in relation to site 240. Order on 10 December 2001 that they be provided with an access card. Order on 27 February 2002 that visitors to the Hoggs be allowed to enter and to park within the relocatable section of the site. On 22 September 2002 Mr and Mrs Hogg obtained an order for compensation for interference with their peace and enjoyment of their site. They obtained payment by way of a garnishee order after a Local Court examination of Mr Tschannen. On 7 August 2002, the Tribunal set aside a Park Rule relating to visitor entry. On 17 April 2002, the Tribunal ordered that a rent increase was excessive; • Mr and Mrs Jackson, in addition to the assignment of lease from the Dumbletons, obtained orders on 10 December 2001 for an access card and on 28 February 2002 to restrain the Park from restricting visitors to his site; • Mr Jones - orders on 27 February 2002 for an access card for himself, and for an access card for his carer; • Mr Kelly, orders on 6 December 2000 relating to a rent increase; on 16 May 2001 in relation to non-compliance with that order; and on 6 September 2002 in relation to payment of rent to the Tribunal; • Mrs Knight, orders on 27 February 2001 in relation to an excessive rent increase; on 16 May 2001 in relation to the non-compliance with that order; and payment of rent into the Tribunal; • Mr Luback, orders 5 June 2002 relating to visitor parking in the relocatable section; • Mr McGowan, order on 5 March 2001 for the assignment of a site agreement from Mr McKenzie to him; on 30 May 2001 for correction of rent receipts and payment of rent to the Tribunal, and 19 July 2001 for excessive rental increase, on 10 December 2001 for an access card; • Mrs McGowan, order on 10 December 2001 for an access card, on 28 May 2002 dismissing the Park's application that she not be allowed to park on the road, and on 20 August 2002 restoring her access to her ensuite; • Mr Duncombe obtained an order on 9 September 2002 that the lease be assigned to Mr Vallance by 5 pm 13 September 2003; • Mr Pollard - orders on 26 July 1999 and 27 February 2001 that rent increases were excessive; on 28 June 2001, that a rent increase was not payable and that the Park comply with the Act in relation to rent increases, and on 17 June 2002 that his rent be paid into the Tribunal trust account; • Mr and Mrs Shepherd obtained orders in relation to rent on 18 May 1999, rent receipts on 23 February 2001, on 10 December 2001 in relation to an access key, on 26 August 2002 for breach of peace and quiet enjoyment, for enforcement of parking restrictions on 26 August 2002, for compliance with park rules and for the payment of a money order on 16 June 2003; • Mr Skennar, order on 6 December 2000 that a rent increase was excessive; that the resident pay rent into the Tribunal on 16 May 2001, that a rent receipt was excessive on 5 November 2001; • Mr Tacke, orders that rent increases were excessive on 18 April 2000 and 8 June 2000; orders for compliance with the rent orders on 6 December 2000 and 12 June 2001, and an order that the residential site agreement held by Mr Tacke be transferred to Mr Wadley on 2 March 2001; • Mrs Winch, order on 28 August 1997 that a rent increase was excessive. · Blackington Pty Ltd … (was) … convicted of 19 offences under the Residential Parks Act after a two-day hearing (in the Local Court). [...] · A number of Tribunal orders have been appealed from by Mr Tschannen to the Supreme Court. He agreed in cross-examination that he had not had a good success rate there, in fact, he had not won one appeal. The Park Staff · The Park employs a number of staff. Their duties are as follows. 1.5. Warren Tschannen - operations manager. • Mr Tschannen currently carries out the duties of Operations Manager. Currently, Mr Tschannen manages the park and works there four days a week, 9.30 to 3.30. Mr Tschannen deals with correspondence, reviews reports from members of staff and reviews occupancy. Mr Tschannen also has appointments with residents, tradespeople, social workers and government officials as part of park administration. He can be contacted by the caretaker after-hours by telephone. • Whilst Michael Freire was employed as Operations Manager, Mr Tschannen usually worked two days at the park. He spent about four hours at the park on each of those two days. Mr Tschannen instructed Mr Freire on acceptance of a tenant that was outside his parameter to approve, any expenditure items exceeding a certain sum, and staff management issues relating to the changing of rosters, approving of leave, and the dismissing or employing of staff. Currently, and while Mr Freire was working, Mr Tschannen approved of any expenditure, discussed accounting issues with Janelle, the book-keeper, and instructed Sharon, the compliance officer. These are the regular duties he performed while Mr Freire was Operations Manager. 1.6. Michael Freire - former Operations Manager • Mr Freire was employed by the Park as an Operations Manager. He worked Monday to Friday, 7.30 to 4.30 and Saturday mornings, 7.30 to 12.00. He lived off-site. His day-to-day duties included supervising all staff, interviewing prospective tenants and dealing with complaints from owners and tenants. Mr Freire was called to give evidence. 1.7. Lynda Tschannen (Gorham) • Ms Tschannen, sister of Warren Tschannen, works as a part-time cashier. She was not called to give evidence. It is … alleged by … witnesses for the plaintiff that she relayed or provided information as to conditions on sale of homes, park policy on assignments, boom gate access and rent issues. [She was not called as a witness.] 1.8. Rosa Freire • Mrs Freire, wife of Michael Freire, works as a part-time cashier. 1.9. Bill and Anne Frost • Mr Frost is the caretaker who lives on site with his wife, Mrs Anne Frost at the Park. Either Mr or Mrs Frost remain on site at all times. Mr Frost is an upholsterer by trade and makes repairs to furniture in the caravans. Mrs Frost acts as a part-time cleaner. Mr Frost was not called to give evidence... 1.10. Sharon Muschialli • Ms Muschialli is employed by the Park as a compliance officer. She works three days a week. Ms Muschialli's duties consist of preparing and conducting Tribunal hearings. She also alerts staff to Tribunal orders and familiarises staff with the Residential Parks Act, the Residential Tenancies Act and relevant sections of the Local Government Act. Ms Muschialli's position will be vacant in the near future and the Park is currently trying to find a replacement. She was not called to give evidence... 1.11. Peter Davies • Mr Davies is employed as a full-time security officer. He handles security issues including liaising with authorities. 1.12. Janelle • Janelle takes care of book-keeping on Wednesdays. 1.13. Jeff • Jeff is a full-time carpenter on contract. 1.14. Dave • Dave is a full-time gardener who is also a resident at the park. He has worked there for the past seven years. 1.15. Mark • Mark works part-time gurning (pressure cleaning) vans. He also assists Dave with an intensive clean-up of rubbish once a week. · In July 2001, the Park engaged International Protection Agency ("IPA") as security provider for the Park. Tim Kafer was employed by IPA in about August 2001 and he took on day-to-day responsibility for the Park from that time, until the termination of the agreement with IPA in mid-January 2002.
Residential Parks Act 1998 10 The Act provides as follows, so far as is relevant.
Pt 1: Preliminary 11 The following definitions appear in s3. 12 The phrase "residential park" is defined as meaning a caravan park (defined as including land on which caravans and other moveable dwellings are placed) or a manufactured home estate (defined as including land on which manufactured homes are placed). 13 The phrase "manufactured home" includes a moveable dwelling which is not registrable as a vehicle. 14 The phrase "moveable dwelling" includes a caravan or other van used for human habitation and also includes a manufactured home. 15 The phrase "relocatable home" includes a moveable dwelling that is not registrable as a vehicle. 16 The phrase "park owner", in relation to a residential tenancy agreement, means any person who grants the right to occupy residential premises under the residential tenancy agreement and, when used in s30 or in Pts 6-11, in relation to a residential park, means any person who is entitled to the land comprising the residential park for any estate of freehold in possession. Section 143 provides that a park owner may appoint a park manager with responsibility for day-to-day management including the letting of residential premises. 17 The phrase "residential tenancy agreement" includes any agreement under which a person grants to another for value a right of occupation of residential premises for the purpose of use as a residence. 18 The phrase "residential site" means a site within a residential park that is used or is intended to be used for the installation of a moveable dwelling. 19 The phrase "residential site agreement" includes a residential tenancy agreement under which the park owner grants to the resident a right to install on a residential site a relocatable home and a right to use the home as a residence; and the resident occupies the premises as the residents' principle place of residence. (A residential site agreement is a species of residential tenancy agreement.)
Pt 2: Application of Act 20 Section 5 provides that the Act applies to a residential tenancy agreement under which the residential premises consist of a residential site or a moveable dwelling on a residential site and the resident occupies the premises as the resident's principle place of residence. The section further provides that the Act applies to such a residential tenancy agreement irrespective of the terms of the agreement or any other agreement.
Pt 3: Residential tenancy agreements relating to residential parks 21 Under s8, there is a standard form of residential tenancy agreement relating to residential parks. Sections 9, 10 and 11 provide, in effect, that the prescribed form of a residential tenancy agreement relating to a residential park and the Act and any other Act take priority over any inconsistent or non-compliant wording in the agreement.
Pt 4: Rights and obligations of park owners and residents
Div 1: Rights and obligations 22 Section 20 implies a term that the resident must have quiet enjoyment of the residential premises without interruption by the park owner and that the park owner or park manager must not interfere, or cause or permit any interference, with the reasonable peace, comfort or privacy of the resident. The section further provides that a park owner or a park manager under a residential tenancy agreement must not contravene or fail to comply with that provision. A penalty for contravention is prescribed. 23 Section 30 implies a term in residential tenancy agreements in respect of residential premises in a residential park that, if the park owner has installed any security device such as boom gates to restrict entry, the park owner must give a copy of any opening device or information required to open the security device to the resident. The section further implies a term to the same effect if the park owner installs such a security device during the term of an agreement. No penalty for contravention is prescribed.
Div 3: Change of park owner or resident 24 Section 41 implies a term that the resident may, with the prior consent of the park owner, assign the resident's rights and obligations under the agreement, and that the park owner may not unreasonably withhold or refuse consent. No penalty is prescribed for contravention.
Div 1: General matters 25 Section 48(1) provides that a rent receipt be provided without delay. A penalty for non-compliance is prescribed. 26 Section 48(3) provides that a receipt for rent is not a receipt for the purposes of the section unless it includes certain particulars, including (b) whether the resident is in debt or credit as at the date of payment and (c) by what amount and the period for which the rent is paid.
Div 2: Rent increases and excessive rents 27 Section 53 permits rent being increased by 60 days' notice. The rent may also be increased by an order of the Consumer, Trader and Tenancy Tribunal (hereafter "the Tribunal"). 28 By s54 the Tribunal may order the refund of overpaid rent on the ground that the rent increase was not properly notified; or, under s55, on the ground that the rent increase is excessive. Under s58, orders may be made by the Tribunal accordingly. 29 Section 61 provides that a park owner must not wilfully contravene or fail to comply with an order that rent must not exceed an amount specified by the Tribunal, nor demand or receive rent exceeding an amount specified by the Tribunal. A penalty for contravention is prescribed.
Pt 6: Park rules for residential parks 30 Section 62 provides that a park owner may make park rules. By s63, the park rules constitute terms of every residential tenancy agreement in respect of residential premises in the residential park. In the case of an inconsistency with a residential tenancy agreement, the agreement takes priority. A copy of the park rules must be provided to a resident or prospective resident at the time of entering into the residential tenancy agreement. A penalty for non-compliance is prescribed. 31 Section 64 provides for amendment to the park rules by the park owner on 60 days' notice to residents.
Pt 7: Community aspects of residential park living 32 Section 67 provides that residents have a right to participate in any organisation of residents of the residential park and that the park owner or park manager must not unreasonably interfere with a resident's rights under the section. A penalty for non-compliance is prescribed.
Pt 10: Sale of moveable dwellings and manufactured homes
Div 1: Sale of moveable dwellings in residential parks 33 Section 80 implies a term that, where the residential premises consist of a residential site only, that the resident is entitled to sell the relocatable home or other moveable dwelling installed on the residential site while the dwelling is in place, unless the agreement expressly provides that on-site sales are prohibited. 34 Section 82(1) provides that a residential tenancy agreement may include restrictions on the sale of a relocatable home or other moveable dwelling while it is installed on the residential site, but that any other such restriction that the park owner purports to impose is unenforceable. 35 Section 82(2) provides that a park owner must not interfere with the sale of a moveable dwelling while it is installed on a residential site unless permitted to do so under the agreement. A penalty for infringement is prescribed. 36 Pursuant to s85, a park owner or a resident may apply to the Tribunal for resolution of any dispute concerning the sale of a moveable dwelling while it is installed in a residential park, and the Tribunal may make orders relating to the payment of commission or an order preventing interference with the sale of the moveable dwelling.
Pt 11: Dispute resolution 37 Sections 87 to 89 relate to resolution of disputes concerning amendment to park rules, including processes involving a park disputes committee. 38 Section 90 provides for an application to the Tribunal concerning any dispute relating to the legal validity of a park rule, to be made by not less than five residents in the ordinary case. The Tribunal may then make an order setting aside a park rule or modifying its operation.
Pt 12: Termination of residential tenancy agreements
Div 2: Grounds for termination of a residential site agreement 39 Division 2 of Pt 12 of the Act deals with grounds for termination of a residential site agreement. These include termination by the park owner for non-payment of rent (s98); because the dwelling is dilapidated (s99); serious or persistent breach of the agreement (s100); vacant possession required in order to comply with a legal obligation to carry out works (s101); or on the ground that the site is to be used for a purpose other than that of a residential site (s102), the resident then being entitled to compensation in accordance with s128. Div 5: Termination of residential tenancy agreements by Tribunal 40 Under s113, application may be made to the Tribunal for determination of a residential tenancy agreement.
Div 6: Recovery of possession of residential premises 41 By s121, exclusive jurisdiction is given to the Tribunal to make orders for possession. Div 7: Compensation for termination of a residential site agreement 42 Section 127 authorises a park owner to require a resident under a residential site agreement to relocate to a different residential site, on 90 days' notice. A resident who relocates in accordance with such notice is entitled to be paid compensation in accordance with s128. 43 Section 128 provides that the amount of compensation that a resident is entitled to be paid by a park owner under the division is to be fixed by an order of the Tribunal on application of the park owner or the resident. In fixing the amount of compensation in connection with the relocation of a dwelling under s127 or otherwise, the Tribunal is to have regard to certain specified matters, including disconnection of services, transport, reinstallation and landscaping the new site. 44 The section further provides that, in fixing the amount of compensation otherwise than in connection with relocation to which a resident is otherwise entitled, the Tribunal must have regard to the same suite of considerations, with the exception of landscaping. 45 Compensation is not payable for an amount in excess of the value of the dwelling.
Pt 14: Miscellaneous 46 Section 144 prohibits contracting out of the provisions of the Act and the regulations made under the Act. A penalty for non-compliance is prescribed. 47 Section 147 provides that any contravention or failure to comply with a provision of the Act for the breach of which a penalty is not specified does not give rise to an offence.
Pt 5: Fair trading 48 Section 42(1) proscribes conduct, in trade or commerce, that is misleading or deceptive or is likely to mislead or deceive. The phrase "trade or commerce" is defined in s4(1) as including any business activity. 49 Section 43(1) provides that a supplier shall not, in trade or commerce, in connection with the supply or possible supply of services, engage in conduct that is, in all the circumstances, unconscionable. 50 The word "services" is defined in s4(1) as including any rights or benefits conferred under a residential tenancy agreement (within the meaning of the Residential Parks Act 1998) under which the residential premises consist of a residential site in a residential park or a moveable dwelling on such a residential site.
Pt 6: Enforcement and remedies 51 Section 65 provides, so far as it is relevant, as follows: 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 … 5 … the Court may grant an injunction in such terms as the Court determines to be appropriate. … (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. 52 The section provides that an application for such an injunction may be made by the Director-General. That office is defined in s3 as meaning the present plaintiff. 53 Section 66(1) provides that, where the Supreme Court is satisfied that a person has engaged or is proposing to engage in conduct that constitutes or would constitute the contravention of a provision of any other legislation of "administered by the Minister", the court may grant an injunction in such terms as the court determines to be appropriate. 54 The subsection provides that an application for such an injunction may be made by the Director-General (that is, by the present plaintiff) with the consent of the Minister. The consent is common ground. 55 It is also common ground that the Residential Parks Act is legislation "administered by the Minister" within the meaning of s66(1). 56 There is no provision in s66 corresponding with s65(2), s65(6) or s65(7). 57 Section 72(4) provides that, where proceedings are instituted by the Minister or the Director-General (now the Commissioner) under s65 and a person is found to have engaged in conduct in contravention of a provision of Pt 5, the Director-General (now the Commissioner) may make an application on behalf of a person who has suffered loss or damage or is likely to do so, with the consent in writing given by each such person. Such an application for compensation then proceeds pursuant to s72(2) which provides for applications for compensation made by a person who has suffered or is likely to suffer loss or damage.
Tribunal statutes 58 It is an offence to wilfully contravene or fail to comply with an order of the Tribunal: Residential Tribunal Act 1998, s47A (since repealed); Consumer, Trader and Tenancy Tribunal Act 2001, s52.
The summons 59 The further amended summons as amended on 10 October 2003, reads as follows:
A DECLARATION that the defendants have contravened the provisions of the Residential Parks Act ("the Act") by:- (a) breaching s 20 of the Act; (b) breaching s 30 of the Act; (c) breaching s 41 and s 82(1) of the Act, (d) breaching s 48 of the Act; (e) breaching s 61 of the Act; and (f) breaching s 82 of the Act the particulars of which breaches are Schedule A to this Summons.
A DECLARATION that the Second Defendant is the "park owner" of the Banora Point Caravan Park (also known as Banora Point Tourist Caravan Park and/or Banora Point Residential Park) located at 2 Pacific Highway, Banora Point ("the Park").
A DECLARATION that the Third Defendant is a "park owner" of the Park as defined in s 3(1)(b) of the Act .
AN ORDER that the First Defendant by himself, his servants or agents or otherwise be restrained from personal involvement in the management of the Park, including but not limited to:- (a) communicating with residents of the Park, (b) harassing, threatening, or coercing residents of the Park; (c) managing the Park's day-to-day activities; (d) directing employees of the second and/or third defendants except as required to comply with order 5 below;
AN ORDER that the First Defendant:- (a) within 7 days of the making of this order, submit to the plaintiff for his approval the name, address, date of birth or corporation details, and curriculum vitae of a person holding a current Strata Managing Agent Licence issued pursuant to section 23 Property Stock and Business Agents Act 1941 or a corporation holding a current Strata Managing Agent Licence issued pursuant to section 23 Property Stock and Business Agents Act 1941 whom it is proposed to appoint as Park Manager pursuant to s 143 of the Residential Parks Act ; (b) either, on receipt of approval of that person by the plaintiff, appoint that person as Park Manager of the Park, or if the plaintiff does not approve the person nominated by the second defendant, appoint a nominee of the plaintiff as Park Manager of the Park; (c) authorise the person so appointed under order 5(b) to exercise the powers set out in sub-s 143(1) of the Act and in the document headed "Amended Statement of Manager's Duties" tendered to the Court ; (d) direct the person so appointed under order 5(b) to provide information to the Plaintiff every six months, within 30 days of both 30 June and 31 December each year, such information in respect to the preceding six months to include:- (i) complaints by residents, their content and resolution; (ii) a list of residents with residential tenancy agreements; (iii) a list of residents with residential site agreements; (iv) a list of persons without written agreements with the defendants who are ordinarily resident at the Park for more than 30 days; and (v) applications to the Consumer Trader and Tenancy Tribunal, their content and resolution; and (e) be restrained from revoking the appointment of the Park Manager without the consent in writing of the Plaintiff. (f) authorise the person so appointed under order 5(b) to operate a bank account in the name of "Banora Point Caravan Park Manager" into which rentals are paid and out of which the day-to-day running expenses of the park may be paid, and a buffer for emergencies may be retained, such payments to be at the discretion of the person appointed, and the balance of which is to be remitted to the first plaintiff or his nominee on a weekly basis; (g) in the event of any dispute between the person appointed and the First Defendant as to the management of the park, the parties are to agree upon a mediator and, in the failure of the parties to agree, to request the Chief Executive Officer of the Real Estate Institute to appoint a person a mediator, and the decision of the mediator will be binding upon the manager and the First Defendant.
AN ORDER (a) restraining the defendants and each of them, their servants and agents from breaching section 30 of the A ct by:- (i) failing to provide residents with keys or any other opening device to the boom gates; (ii) providing keys or any other opening device which do not work to operate the boom gates; (iii) programming the boom gates to prevent residents being able to operate them; and (iv) failing to maintain the boom gates in working order. (b) that the defendants and each of them, their servants and agents comply with s 30 of the Act by:- (i) giving a copy of the key or any other opening device to open the boom gates (or other security device which may be installed from time to time) to each of the residents of the Park and to any new resident at the commencement of the agreement, such key or opening device to remain programmed to operate the boom gates or other security device at all times, and (ii) maintaining the locks, boom gates or other security device in working order at all times.
AN ORDER:- (b) restraining the defendants and each of them, their servants or agents from breaching the provisions of Part 10 Division 1 of the Act and in particular by:- (i) informing potential buyers of relocatable homes or rigid movable dwellings that such moveable dwellings or relocatable homes have to be removed from the Park; (ii) interfering with the sale of moveable dwellings or relocatable homes;
7A. A DECLARATION that the conduct of the Defendants in relation to breaching the provisions of Part 10 Division 1 of the Act and in particular by:- (a) informing potential buyers of reloctable homes or rigid moveable dwellings that such moveable dwellings or reloctable homes have to be removed from the Park; and (b) interfering with the sale of moveable dwellings or relocatable homes; was:- (c) misleading and deceptive within the meaning of s 42 of the Fair Trading Act; and/or (d) unconscionable within the meaning of s 43 of the Fair Trading Act.
A DECLARATION that the conduct of the First Defendant in relation to the boom gates was:- (a) misleading and deceptive within the meaning of s 42 of the Fair Trading Act; and/or (b) unconscionable within the meaning of s 43 of the Fair Trading Act.
AN ORDER:- (a) restraining the defendants and each of them, their servants and agents from breaching s 48 of the Act by providing rent receipts:- (i) noting the correct name of the resident; (ii) reflecting the proper rent payable with reference to orders of the Tribunal; and (iii) showing the correct balance of rent paid by each resident. (b) that all future rent receipts issued by the defendants and each of them, their servants and agents comply with section 48 of the Act ; (c) that the first defendant ensure that the rent records of the residents set out in Schedule B to this Summons be corrected as set out in the Schedule within 7 days of the making of the order and that amended rent receipts to correct the errors be issued within 14 days of the making of the order; and (d) that the first defendant forward a copy of the amended rent records and receipts to the plaintiff within 14 days of the making of the order.
A DECLARATION that the conduct of the First Defendant in relation to rent receipts was:- (a) misleading and deceptive within the meaning of s 42 of the Fair Trading Act; and/or (b) unconscionable within the meaning of s 43 of the Fair Trading Act.
AN ORDER that the Defendants and each of them, their servants and agents comply with orders made by the Consumer Trader and Tenancy Tribunal and the Residential Tribunal, as listed in Schedules B and C to this Summons.
Folio Section Contravention Date of Contravention Nature of Conduct Resident Site No.
3 20 Interfere with right to quiet enjoyment 02/04/2002 Blackington changed the lock on the ensuite door & refused to provide a key Grace McGowan 25 5 20 Interfere with right to quiet enjoyment 26/04/2001 Park manager Friere kicked resident Alan Shepherd 115 8 20 Interfere with right to quiet enjoyment 11/02/2002 Restrict vistor's access to permanent resident's site Vincent Flanagan 205 9 20 Interfere with right to quiet enjoyment 11/02/2002 Restrict vistor's access to permanent resident's site George Jones 206 10 20 Interfere with right to quiet enjoyment 12/02/2002 Restrict vistor's access to permanent resident's site Darrell Jackson 233 11 20 Interfere with right to quiet enjoyment 13/02/2002 Restrict vistor's access to permanent resident's site John Luback 226 12 30 Restrict entry of resident 28/11/2001 Blackington refused to issue keycard which effectively operates the boomgate Grace McGowan 25 13 30 Restrict entry of resident 28/11/2001 Blackington refused to issue keycard which effectively operates the boomgate Gary McGowan 26 14 30 Restrict entry of resident 28/11/2001 Blackington refused to issue keycard which effectively operates the boomgate Warren & Jennifer Hill 29 15 30 Restrict entry of resident 28/11/2001 Blackington refused to issue keycard which effectively operates the boomgate Darrell Jackson 233 16 30 Restrict entry of resident 30/11/2001 Blackington refused to issue keycard which operates the boomgate Vincent Flanagan 205 17 30 Restrict entry of resident 16/02/2002 Blackington refused to issue keycard which operates the boomgate Margo Knight 236 18 30 Restrict entry of resident 11/02/2002 Blackington did not provide working keycard for boomgate Yvonne Hughes 213 19 41 Right to assign rights 06/03/2001 Blackington failed to comply with order of Tribunal to assign rights Barry & Lorraine Dumbleton 233 20 41 Right to assign rights 02/03/2001 Blackington failed to comply with order of Tribunal to assign rights Gerhard Dieter Tacke 61 21 41 Right to assign rights 09/03/2001 Blackington failed to comply with order of Tribunal to assign rights Bruce McKenzie 26 22 41 Right to assign rights Blackington failed to comply with order of Tribunal to assign rights Leonard Duncombe 222 23 48(3)(b) Rent receipts 04/03/2001 Rent receipt did not indicate if rent is in debit / credit as at payment date & by what amount. A. Shepherd 115 25 48(3)(b) Failure to provide rent receipts 30/7/00 & 27/8/00 Rent receipt did not indicate if rent is in debit / credit as at payment date & by what amount. Alan Shepherd 115 26 48(3)(c) Fail to issue detailed rent receipts. 18/03/2001 Blackington gave rent receipts which did not include the period for which rent is paid. A. Shepherd 115 27 48(3)(c) Fail to issue detailed rent receipts. 16/04/2001 Blackington gave rent receipts which did not include the period for which rent is paid. A. Shepherd 115 28 61 Rent not to exceed amount specified by Tribunal 6/12/00 - 11/5/01 Blackington debited rent in excess of amount Tribunal specified. Clifford Kelly 221 29 61 Rent not to exceed amount specified by Tribunal 6/12/00 - 11/5/01 Blackington debited rent in excess of amount Tribunal specified. Grace McGowan 25 31 61 Rent not to exceed amount specified by Tribunal 6/12/00 - 3/5/01 Blackington debited rent in excess of amount Tribunal specified. Raymond Skennar 92 34 61 Rent not to exceed amount specified by Tribunal 8/12/00 - 11/5/01 Blackington debited rent in excess of amount Tribunal specified. Margo Knight 236 35 61 Rent not to exceed amount specified by Tribunal 8/12/00 - 23/2/01 Blackington debited rent in excess of amount Tribunal specified. Gerhard Dieter Tacke 61 36 61 Rent not to exceed amount specified by Tribunal 1/12/00 - 18/5/01 Blackington debited rent in excess of amount Tribunal specified. Vincent Flanagan 205 37 82(2) Owner must not interfere with a sale 16/09/2002 Blackington tells potential buyers that residence will have to be removed from the park in circumstances where such interference is not permitted Leonard Duncombe 222 38 82(2) Owner must not interfere with a sale 23/11/2001 Blackington tells potential buyers that residence will have to be removed from the park in circumstances where such interference is not permitted Brian & Annie Northcote 88 39 82(2) Owner must not interfere with a sale Blackington tells potential buyers that residence will have to be removed from the park in circumstances where such interference is not permitted Fred & Shirley Fredson 212
Folio No. Residents Site No. Orders Corrective Action
10 SHEPHERD, Alan 115 Respondent to provide rent receipts Provide rent receipts indicating whether the resident is in debit or credit as at the date of payment and by what amount and reflecting the proper rent payable with reference to orders of the Tribunal
· Paragraph 1: Declaration, breaches of Residential Parks Act · Paragraphs 2 and 3: Declarations, second and third defendants park owners · Paragraphs 4 and 5: Orders, appointment of manager in place of first defendant · Paragraphs 6 and 8: Orders and declaration, access · Paragraph 7 and 7A: Order and declaration, interference with sales · Paragraphs 9 and 10: Order and declaration, rent receipts · Paragraph 11: Order, compliance with orders · Paragraph 13: Order, quiet enjoyment · Paragraphs 16, 17 and 18: Orders, compensation 62 In paragraph 1 of the further amended summons, the plaintiff asserts breach by the defendants of the following provisions of the Residential Parks Act. The alleged breaches are specified in Schedule A to the summons. A declaration is sought that the breaches have been committed. · s20 (right to quiet enjoyment) · s30 (access) · s41 (right to assign) · s48 (rent receipts to be supplied) · s61 (contravention of rent orders) · s82(2) (interference with sales) 63 All such breaches are relied upon for orders under paragraphs 4 and 5 for appointment of a manager in place of the first defendant. 64 Breaches of s20 (quiet enjoyment) are relied on for the order sought in paragraph 13. 65 Breaches of s30 (access) are relied on for the orders and declaration sought in paragraphs 6 and 8. 66 Breaches of s48 (rent receipts) are relied on for the order and declaration sought in paragraphs 9 and 10. 67 Breaches of s82(2) (interference with sales) are relied on for the order and declaration sought in paragraphs 7 and 7A. 68 The declarations sought in paragraph 2 that the second and third defendants are park owners within the meaning of the Act are consented to. 69 Paragraph 11 seeks an order that the defendants comply with certain orders of the Consumer Trader and Tenancy Tribunal and of the previously constituted Residential Tribunal (compendiously referred to hereafter as "the Tribunal"). The orders of the Tribunal are specified in Schedules B and C to the summons. 70 Paras 16, 17 and 18 seek orders for compensation and suspension of rent in the case of a specified resident (Mrs Knight), and an order for compensation for other unspecified residents. 71 The declarations sought include declarations that the defendants' conduct constituted breach of s42(1) and / or s43(1) of the Fair Trading Act in relation to interference with sales (paragraph 7A), access (paragraph 8) and rent receipts (paragraph 10). 72 The alleged breaches of s42(1) and / or s43(1) in those respects are then relied upon as activating the power of the court to make the orders pursuant to s65 for the appointment of a manager in place of the first defendant (paragraphs 4 and 5); and orders in relation to access (paragraph 6), interference with sales (paragraph 7) and rent receipts (paragraph 9). 73 Orders pursuant to s66 are sought in the alternative to orders sought pursuant to s65. 74 Additionally, orders are sought pursuant to s66 requiring compliance with Tribunal orders (paragraph 11) and in relation to quiet enjoyment (paragraph 13). 75 The orders in relation to compensation (paragraphs 16, 17 and 18) are sought pursuant to s72 of the Fair Trading Act. 76 A diagram illustrating the scheme of the summons, as amended, follows.
Witnesses 77 Affidavits by the following witnesses were read in the plaintiff's case in chief and in reply: Deponent Sworn D Dowsett 20 November 2002 M Finch 3 February 2003 T Kafer 21 March 2003 23 May 2003 J Ottaway 21 March 2003 B Wheatley 24 March 2003 M Adams 29 January 2003 S Bishop 9 September 2003 T Brown 31 January 2003 28 May 2003 O Burkitt 30 January 2003 R Clark 2 January 2003 23 May 2003 L Dowds 30 January 2003 B Dumbleton 29 January 2003 V Flanagan 30 January 2003 26 May 2003 F Fredson 31 January 2003 22 May 2003 K Gehrig 26 February 2003 C Heskey 30 January 2003 23 May 2003 J Hill 30 January 2003 23 May 2003 L Hogg 27 November 2002 6 December 2002 9 September 2003 23 May 2003 Y Hughes 7 February 2003 H Iden 30 January 2003 D Jackson 30 January 2003 22 May 2003 G Jones 29 January 2003 C Kelly 30 January 2003 M Knight 30 January 2003 8 September 2003 23 May 2003 J Luback 31 January 2003 23 May 2003 Garry McGowan 31 January 2003 Grace McGowan 28 November 2002 H Mistler 24 March 2003 M Molloy 7 February 2003 23 May 2003 B Northcote 30 January 2003 27 May 2003 D Pollard 31 January 2003 26 May 2003 A Shepherd 31 January 2003 8 September 2003 30 May 2003 R Skennar 29 January 2003 G Tacke 30 January 2003 22 May 2003 H Vallance 29 January 2003 J Wadley 5 September 2003 I Winch 24 March 2003 P Murphy 18 September 2003 C Jackson 26 May 2003
78 Of these, the following witnesses were called to give supplementary evidence in chief or for cross-examination or both: Mr T Kafer Mr B Northcote Ms S Bishop Mr F Fredson Mr D Jackson Mr H Vallance Ms C Jackson Mr Garry McGowan Ms Grace McGowan Mr A Shepherd Mr L Hogg Ms O Burkitt 79 Affidavits by the following witnesses were read in the defendants' case: Deponent Sworn W Tschannen 19 December 2002 W Tschannen 16 April 2003 W Tschannen 18 September 2003 M Freire 16 April 2003
The scheme of this judgment 81 At the conclusion of the evidence, counsel on each side submitted a detailed written and oral argument, directed to the further amended summons, paragraph by paragraph. In the sections of this judgment which now follow, I record, by reference to the paragraphs in the further amended summons, the written arguments on each side, including the submissions in relation to the strike-out application to which I have earlier referred. 82 I have altered the order in which topics were dealt with in counsels' submissions. The order in this judgment is as follows. Paragraph numbers relate to paragraphs in the summons. · Second and third defendants park owners (paragraphs 1-3) · Quiet enjoyment (paragraphs 1(a) and 13) · Access (paragraphs 1(b), 6 and 8) · Assignment and interference with sales (paragraphs 1(c) and (f), 7 and 7A) · Rent receipts (paragraphs 1(d), 9 and 10) · Contravention of rent orders (paragraph 1(e)) · Breaches compendiously (paragraph 1) · Appointment of manager in place of first defendant (paragraphs 4 and 5) · Compliance with Tribunal orders (paragraph 11) · Compensation (paragraphs 16, 17 and 18) 83 Paragraph 1 of the summons asserts breaches as specified. I will deal with the asserted breaches, substantially in the order in which the topics appear in paragraph 1. Assignment and interference with sales will be dealt with together because that is the way counsel for the plaintiff has dealt with them. 84 In dealing with a topic in paragraph 1, I will also deal with the relief sought separately in relation to each topic. (For example, in relation to quiet enjoyment, breaches are alleged in paragraph 1(a) and an order is sought in paragraph 13.) 85 The claim for appointment of a manager in place of the first defendant will then be dealt with. (The conduct alleged in paragraph 1 and the alleged breaches of s42(1) and s43(1) of the Fair Trading Act - which related to some of the topics in paragraph 1 - is relied upon by the plaintiff in support of that claim.) 86 The claim for orders in paragraph 11 and in paragraphs 16, 17 and 18 is unrelated to the conduct alleged in paragraph 1, and will be dealt with separately.
The law 87 Special considerations apply to a claim for a declaration of breach of provisions in legislation which protect a public interest, for example, where a large number of members of the public may be affected by breach of legislation such as the Trade Practices Act: ACCC v IMB Group Pty Limited [1999] FCA 313, per Drummond J at [14] and [21], ACCC v Goldy Motors Pty Limited [2000] FCA 1885, per Carr J at [30]. 88 I would not regard the Residential Parks Act as being legislation of that kind, at least in those respects involved here. The Act creates statutory obligations in favour of residents and prescribes penal sanctions for breach. Infringement occurs when the rights of a resident, so created, are not complied with. The legislation is to do with private rights. 89 It may be, however, that a declaration of breach should be made if, in the circumstances of the case, that would serve some practical purpose. This may be so where the meaning or effect of a provision has not been understood and needs to be for ongoing purposes, or where there is some other reason for establishing the ground rules for future conduct such as where there has been a course of conduct in contumelious breach of a provision in the legislation and the existence and importance of the obligation needs to be brought home. 90 Section 65 of the Fair Trading Act, in its relationship with ss42 and 43, has to be analysed to appreciate its true scope and effect. Under subs (1), the court must be satisfied that the person either has engaged in or is proposing to engage in conduct of the relevant kind. 91 Subsection (6) provides that a mandatory or restraining injunction may be granted whether or not the person intends to engage again or continue to engage in such conduct and whether or not the person has previously engaged in such conduct. To read subs (6) conformably with subs (1), subs (6) has to be construed disjunctively, so that where a person has engaged in such conduct in the past, the threat of future conduct is not essential; and where there is a threat of future conduct, past conduct is not essential. 92 Of these two situations, only the first is relevant to the present case. If past conduct of the relevant kind is established, a threat of continuance or repetition is unnecessary. 93 That is a modification of the general law. It should be recognised, however, that, absent a threat of continuance or repetition, there would have to be some other reason for granting an injunction. Past conduct of the relevant kind does not automatically require the exercise of the court's discretion to grant an injunction.
Second and third defendants park owners (paragraphs 2 and 3) 94 This section of the judgment deals with paragraphs 2 and 3 of the Further Amended Summons.
Declarations as to the status of the defendant (orders 2 and 3)
These orders are consented to. Defendants' outline 96 The following is an extract from the defendants' "Outline" document. Paragraphs 2 and 3 These are to be made by consent.
Claim for declarations 97 This section of the judgment deals, in a general way, with the claim for declarations made in paragraph 1 of the summons. More particular treatment follows in relation to the relief sought in each of the following respects.
Plaintiff's outline 98 The following is an extract from the plaintiff's "Outline" document. Declarations as to past conduct (order 1)
· There are several areas in which declarations are sought. These are set out in sub-paragraphs (a) to (f) of paragraph 1, The conduct relied upon, and the specifics of the breaches proven by the plaintiff, are set out in the Contentions of Fact. · The proceedings are public interest litigation. Drummond J, in ACCC v. IMB Group Pty Ltd, supra, said:- "It would still be open to the Court, given the public interest nature of the proceedings, to make declarations that conduct to which the Respondents were involved in the past did contravene one or other of the provisions of the Trade Practices Act relied on. … If those activities do involve contraventions of the Trade Practices Act , there is in my opinion a legitimate public interest to be vindicated by the ACCC pursuing the case to judgment with a view to obtaining a judicial pronouncement that the Respondents' activities did infringe the Act, whether or not the circumstances are such as to require anything more than the making of declarations to that effect". · See also, ACCC v. Goldy Motors Pty Ltd 2001 ATPR 41-801, and an adoption of the above dicta by Grove J in Commissioner for Fair Trading v. HMS Direct, [2003] NSWSC 415 in the context of the Fair Trading Act. · The defendants have not, to this point, admitted their culpability in what are fairly clear-cut examples of incorrect conduct. The declarations will be judicial recognition of the breaches by the defendants. · The declarations are also necessary for the jurisdictional basis of injunctive relief under s 65 of the Fair Trading Act.
Defendants' outline 99 The following is an extract from the defendants' "Outline" document.
· The Court is not required to make declarations, even if satisfied that the defendants have breached some or all of the enumerated sections of the Residential Parks Act. The declaration must have some utility.
· In any event, it remains unclear how the plaintiff proposes to prove many of the alleged breaches. In a number of instances, the plaintiff appears to wish to take advantage of Tribunal reasons in a manner going beyond the limited basis upon which they were received into evidence.
· The defendants have proffered undertakings which, for all purposes, are as effective as the orders which the plaintiff seeks. The Court should not be required to pore through the detail of the plaintiff's evidence, to make individual findings in respect of each of the alleged 39 contraventions.
Quiet enjoyment (paragraphs 1(a) and 13) 100 This section of the judgment deals with paragraphs 1(a) and 13 of the summons.
101 In Schedule A to the summons in its final form, six breaches of s20 are specified, being - Contravention Date of Contravention Nature of Conduct Resident Interfere with right to quiet enjoyment 02/04/2002 Blackington changed the lock on the ensuite door & refused to provide a key Grace McGowan Interfere with right to quiet enjoyment 26/04/2001 Park manager Friere kicked resident Alan Shepherd Interfere with right to quiet enjoyment 11/02/2002 Restrict vistor's access to permanent resident's site Vincent Flanagan Interfere with right to quiet enjoyment 11/02/2002 Restrict vistor's access to permanent resident's site George Jones Interfere with right to quiet enjoyment 12/02/2002 Restrict vistor's access to permanent resident's site Darrell Jackson Interfere with right to quiet enjoyment 13/02/2002 Restrict vistor's access to permanent resident's site John Luback
Defendants' submissions on strikeout application 102 The following is an extract from the defendants' "Submissions on Strikeout Application" document. Paragraph 13:
· Section 20 of the Residential Parks Act states: (1) It is a term of every residential tenancy agreement that: (a) the resident must have quiet enjoyment of the residential premises without interruption by the park owner or any person claiming by, through or under the park owner or having superior title to that of the park owner, and (b) the park owner or the park manager must not interfere, or cause or permit any interference, with the reasonable peace, comfort or privacy of the resident in using the residential premises. (2) A park owner or a park manager under a residential tenancy agreement must not, during the currency of the agreement, contravene or fail to comply with subsection (1).
· It seems to be common ground that the area "designated" on the plan is not an area which, by virtue of any law, regulation or contractual term, is required to be set aside for permanent residents: see page 16, paragraph 8, and page 19, paragraph 8, 9 of the attached correspondence. It will be noted that there are permanent residents whose sites are outside the designated area
· The judgement of Shaw J upon which the plaintiff relies [Department of Housing v CTTT (unreported, Supreme Court, 31 March 2003)] is a quite different case: even if the Tribunal decision which his Honour declined to set aside is correct (a matter which the defendants respectfully dispute), it is a case of a landlord failing to take action against an identified tenant who has proven to be disruptive.
· The approach taken by the plaintiff in these proceedings is quite different: it appears to contend that a particular class of occupant is required to be kept segregated from the permanent residents, otherwise the owner is in breach of the covenant. This is, with respect, simply wrong
· If it is a breach of the covenant for quiet enjoyment to fail to segregate the occupants of the park, what, it may be asked, are the defendants' obligations to those permanent residents whose sites are outside the designated area, and to the casual residents of the park, who are also entitled to the benefit of a covenant for quiet enjoyment in similar terms, by virtue of section 22 of the Residential Tenancies Act. Why is it that only permanent residents, and some of them at that, are entitled to segregation from the casual residents? It is a notorious fact that residential parks are a form of housing to which many people who are poor, or in receipt of social security, have resort. Yet, upon the plaintiff's contentions, no park owner could safely allow any such person into his park. Plaintiff's response to defendants' submissions on strikeout application 103 The following is an extract from the plaintiff's "Response to Defendants' Submissions on Strikeout Application" document. Paragraph 13 of the Summons · Paragraph 13 of the Summons does not, as the defendant submits, involve a segregation of "a particular class of resident" in any way which is not reflected in the Residential Parks Act ("the Act"). The Act provides that there are various classes of occupiers of residential parks and that differences in the class of tenancy accords the tenant differing rights. A "residential tenancy agreement" (s 3(1)) reflects the definition of the same concept in the Residential Tenancies Act and is, in effect, what is commonly referred to as a "residential lease". A sub-species of "residential tenancy agreement is a '"residential site agreement". Holders of "residential site agreements" (s 3(1)) have the right to: i. ...install, on a residential site, a relocatable home, or a registrable moveable dwelling with a rigid annexe attached to it (being a relocatable home or registrable moveable dwelling owned by the resident", and ii. a right to use the home or dwelling as a resident; and iii. the resident occupies the premises as the resident's principal place of residence ..." · A residential park such as Banora Point also houses persons who occupy cabins or vans on a casual or temporary basis, be they holiday makers or what are referred top in the affidavits to as "emergency housing" tenants, as well as those who hold occupation agreements under the Holiday Parks (Long-term Casual Occupation) Act 2002. · The holders of residential site agreements in effect own their own home which is then placed upon the defendant's land. As will be clear if there is a view of the site, relocatable homes or moveable dwellings (each of which are defined in the Act) are often substantial. A number of residents give evidence of the purchase price of their homes which are in the five figures. A person holding a residential site agreement is assured, unless the residential tenancy agreement specifies otherwise, that:- they may sell their dwelling onsite (s 80); the park owner[1] may not interfere with any sale (s 82) they may assign their rights under the agreement or sub-let with the prior consent of the park owner. That consent may not be unreasonably withheld (s 41 - sub-s 2 of which displaces the effect of s 133B of the Conveyancing Act) . · A residential site agreement is, clearly, a valuable right and one which is more than simply a right to occupy a van in a caravan park. It is a strange statutory creature, being a lease of land with the right to install a residence upon the land. The affidavits make it clear that many of the residents who are currently located in the "relocatable" section of the Park (and other permanent residents, who do not live in that section) have lived there a long time. Many are elderly. Many are ill. They wish to live as permanent residents in the Park, and object to the change of use which the first defendant has imposed upon them by:- the placement of unsewered caravans on the roads; the placement of vans which are used for temporary occupants next door to permanent residents; and the failure of the defendants to protect the quiet enjoyment of the residents by ensuring that the concerns about temporary residents in the middle of permanent residents was acted upon. · The orders sought in paragraph 13 are based on s 20 of the Act. The covenant of quiet enjoyment under the Act differs from the covenant of the same name implied by the general law of leases. The general law covenant relates only to peaceful enjoyment in the sense of being free from interruption by adverse claimants to title of the property, or interruption with the peaceful occupation of the property. The covenant may be breached by the landlord cutting off gas and electricity supplies[2] or by removing doors and windows in an attempt to coerce the tenant into giving up possession.[3] In Browne v. Flower [1911] 1 Ch 219, Parker J said that there was no breach of the covenant of quiet enjoyment by "a mere interference with the comfort of persons using the demised premises by the creation of a personal annoyance such as might arise from noise, invasion of privacy or otherwise" (at 228). · The common law position has been altered by the provisions of s 20(1) of the Act, where the "right to quiet enjoyment" (see section heading) is assured by forbidding the park owner or the park manager from interfering, or causing or permitting any interference, with "the reasonable peace, comfort or privacy of the resident in using the residential premises". The decision in Department of Housing v. CTTT [2003] NSWSC 150 is an example of the breadth of the actions which may constitute a breach of sub-s 20(1)(b), and illustrates the point that the landlord has active duties when it comes to protection of another tenant's peace, comfort and privacy In this case, many of the tenants complain of the downturn in those important factors when casual or non-permanent residents were housed in sub-standard housing. Given Mr Tschannen's stated purpose of not issuing any new residential site agreements, and his and his employees' undoubted conduct in failing to acknoweldge rights of transfer and assignment, it is open to the Court to find that such conduct was done with the intention of making life difficult for the permanent residents. · The orders sought in s 13 of the Act seek to recognise the differences between permanent residents holding under "residential site agreements", and other residents of the Park, and to enable a return to the situation when there was a "relocatable" section of the Park which was, in practical terms, immune from the vagaries of some of the difficulties of "caravan park" life. There is nothing discriminatory or irregular in the orders sought, as appears to be suggested; nor do the proposed orders make it impossible for casual residents to be "allowed into the Park". As Mrs Molloy puts it in paragraph 8 of her affidavit, "the sense of community is gone".[4] The "sense of community" is what the provisions of the Act and the orders sought in the Summons is seeking to achieve.
Plaintiff's outline 104 The plaintiff's "Outline" document repeats earlier written submissions in relation to paragraph 13 of the summons.
Plaintiff's contentions of fact 105 The following is an extract from the plaintiff's document "Plaintiff's contention of fact". · On 30 April and 1 May, 2002, Environmental Health officers of the Tweed Shire Council, the local government authority for the Park, inspected the Park in response to complaints from residents. Mr Wheatley was one of the officers who inspected the Park. He gave evidence that the Park breached a number of Local Government Act provisions, and required a number of works to be undertaken for continuance of the "Approval to Operate" to the Park issued by the Council's Environment and Health Services Unit. The report identified issues such as the provision of toilet facilities, visitor parking spaces, and the use of caravans for which sites were not approved. · The caravans were originally placed upon Crown land within the Park and there were complaints by the residents about the lack of proper sewage and water connections, resulting in sullage flowing into the wetlands. These were moved onto a paved road within the Park days before a Council inspection and remain there, occupied, although not being approved for that purpose. They block one of the main parts of the "ring road" around the Park. · The caravans comprise both a loss of amenity for the residents, and a breach of the Local Government Act. Mr Tschannen has criticised a number of residents for parking partly on the road and partly on their own sites, yet has blocked a major part of the access to the Park by his use of unapproved and unsewered caravans. · There have been breaches of quiet enjoyment (as found by the Tribunal and as listed in Schedule A to the Amended Summons), and in matters such as removal of the fence behind the Hoggs in breach of the Park Rules current at the time. Mrs McGowan is entitled to sole occupancy of her ensuite (see Council report annexed to affidavit of Mr Wheatley) but the defendant acknowledges it changed the locks to give another site access to her ensuite.
Plaintiff's further submissions and contentions 106 The following is an extract from the plaintiff's document "Further submissions and contentions".
Further Factual Contentions - order 13 of the Amended Summons · The plaintiff seeks to have reinstated the "relocatable section" of the Park which was, until 2001 or 2002, comprised of owner-occupied housing exclusively. The first defendant gave evidence (T pp 271 ff) that he intended this section to be occupied only by persons holding residential site agreements, and that he tried to get people with residential site agreements who were located elsewhere in the Park to move there. He did not succeed - as Ms Bishop said in evidence, a riverfront site elsewhere was better than a "back" site in the relocatable section - but was nevertheless willing to have empty spaces in that section rather than move in other tenants. In the Village News (exhibit L) of (date), the first defendant expressed dissatisfaction at something which he alleged Mr Hogg had said in the Tribunal, and opened up the relocatable section to HV ("hire vans") and placed tourist cabins in the site. He denied (Tr 295) that there were caravans there, something which was visible during the view. · The preponderance of evidence shows that tenants were moved to the relocatable section without thought as to the impact that those tenants would have on the formerly settled and "permanent" relocatable section. Mr Hogg and other residents give evidence that:- o caravans infested with rats were stored there; o noisy "emergency housing" tenants were housed there; and o the quality of life, or "community" of the section, dissipated once the "relocatable only" rule had disappeared. o See, for example:- · Aff L Hogg 1 pars 18-22 · Aff L Hogg 2, pars 7-11 · Aff Y Hughes, par 11, 12 · Aff H Iden, pars 7(1st & 4th sentences), 8 and 9 · Aff D Jackson 2, 26, 27, 28, 29-32 · Any tenant who interrupts another person's reasonable peace, comfort or privacy of any neighbour is in breach of the residential tenancy agreement (see s 21 of the RP Act) and the Park Owner is able to cite such a breach in a notice of termination. Under the Standard Form for a residential site agreement (see Sch 1, Residential Parks Regulation 1999), cl 31 provides that:- "The park owner agrees to take all reasonable steps to ensure that the park owner's other residents:- 31.1 do not unreasonably interfered with the privacy, peace and quiet of the other residents of the residential park, or 31.2 do not unreasonably interfere with the proper use and enjoyment of the residential park by the other residents of the residential park."
Further Submissions · The plaintiff, while not seeking the orders in order 15, do seek the orders sought in order 13(b)(ii) in the Amended Summons, that is, that the caravans currently placed on the road be removed. The basis for this order is s 20 of the RP Act - that the caravans, by blocking the ring road and being unsightly, as well as insanitary, interfere with the peace, comfort and privacy of the other residents. See the affidavits of Mr Hogg, as well as paragraph 16 of Mr Kelly's affidavit. The fact that there may be some Local Government action on this point should not necessarily remove the issue from the view of the Supreme Court where orders are sought by the plaintiff. The defendants submit that the silence of other owners on this point should be taken as satisfaction with the situation - in fact, no such positive inference should be drawn (see Director-General of Department of Fair Trading v. Sims). · The statutory position relating to vehicular access is this. Section 30 of the Act requires that free access be given through locked gates and through security devices such as boom gates and the like. The specific inclusion of "boom gates" would not be necessary unless an implied right to bring a car onto the grounds of the Park is part of that access, since no boom gate is effective to stop a pedestrian. Section 62 (Park Rules) allows the park owner to make written park rules relating to "motor vehicle speed limits" (subs-s 62(2)(b)) and "the parking of motor vehicles" (sub-s 62(2)(c)). The right to enter with a motor vehicle is implied from the absolute right of a resident to have a key which functions at all times to open the boom gates. This would extend to the right to the resident to have a key which functions at all times to open the gates even if they are not in their own car, as the section applies to "access to the residential park" and not merely "access as defined as appropriate by the owner to the residential park." Defendants' outline 107 The following is an extract from the defendants' "Outline" document. Paragraph 13
· This claim for relief is dealt with at length in the defendants' submissions in relation to the strike out application. Those submissions are repeated, with some modifications, as follows:
(1) It is a term of every residential tenancy agreement that: (a) the resident must have quiet enjoyment of the residential premises without interruption by the park owner or any person claiming by, through or under the park owner or having superior title to that of the park owner, and (b) the park owner or the park manager must not interfere, or cause or permit any interference, with the reasonable peace, comfort or privacy of the resident in using the residential premises. (2) A park owner or a park manager under a residential tenancy agreement must not, during the currency of the agreement, contravene or fail to comply with subsection (1).
· It seems to be common ground that the area "designated" on the plan is not an area which, by virtue of any law, regulation or contractual term, is required to be set aside for owners: see page 16, paragraph 8, and page 19, paragraph 8, 9 of ex 1. It will be noted that there are owners, whose sites are outside the designated area. None of those owners outside the relocatable section appear to want to move into it. Some have affirmatively said they do not want to do so.
· The judgement of Shaw J upon which the plaintiff relies is a quite different case: it is a case of a landlord failing to take action against an identified tenant who has proven to be disruptive.
· The approach taken by the plaintiff in these proceedings is quite different: it appears to contend that a particular class of occupant is required to be kept segregated from the owners, otherwise the defendants are in breach of section 20. This is, with respect, simply wrong.
· If it is a breach of section 20 to fail to segregate the occupants of the park, what, it may be asked, are the defendants' obligations to those owners whose sites are outside the designated area, and to the tenants of the park, who are also entitled to the benefit of a covenant for quiet enjoyment in similar terms, by virtue of section 22 of the Residential Tenancies Act. Why is it that only owners, and some of them at that, are entitled to segregation from the tenants? It is a notorious fact that residential parks are a form of housing to which many people who are poor, or in receipt of social security, have resort. Yet, upon the plaintiff's contentions, no park owner could safely allow any such person into his park.
· The question whether or not the placement of caravans on the paved road at the Western edge of the Park contravenes Council requirements is not a concern for this Court, except in so far as it affects the residents' rights under section 20 of the Act.
· First, the evidence is that there are now only seven vans on the paved road, and they are to be moved as sites become available for them.
· Secondly, one would have expected that, if the vans on the road were a problem of any consequence, the owners nearest those vans would be the ones to complain most loudly. They are: Colston (47), Johnston (60), Rees (72), Jaron (73), Cole (83), Skennar (92) and Nye (201). Of these people, Colston has sworn no affidavit, Johston has sworn no affidavit, Rees has sworn no affidavit, Jaron has sworn no affidavit, Cole has sworn no affidavit, Skennar has sworn an affidavit in which he does not mention these vans, and Nye has sworn no affidavit.
· The ones who do complain are: Flanagan (205), Hogg (240), Jackson (233) and Kelly (221) and their complaints are essentially historical. No deponent now suggests that the caravans are a problem.
· As to the bollard issue, the defendants adopt the comments of Mr Wheatley, one of the plaintiff's deponents: see paragraph 15 of his report at page 17 of his affidavit.
· The question of fences is, it submitted, inconsequential. Only one person has ever complained about the removal of a fence. In any event, the Park Rules now forbid fences. 108 I should record here that some of the affidavit evidence referred to in the plaintiff's written submissions was not read:
L Hogg 1, paragraphs 18-22 [Paras 20 & 21 were not read] L Hogg 2, paragraphs 7-11 [Paras 10 & 11 were not read] Y Hughes, paragraphs 11, 12 [Affidavit not read] H Iden, paragraphs 7(1st & 4th sentences), 8 and 9 [These paragraphs not read] D Jackson 2, 26, 27, 28, 29-32 [Paras 29-32 were not read]
The meaning of "quiet enjoyment" 109 As the plaintiff observes, the covenant for quiet enjoyment as understood by the common law is expanded by s20 of the Residential Parks Act. I will, however, refer to the expanded covenant as "the covenant for quiet enjoyment" in what now follows.
Particulars of claim 110 The six episodes particularised in Schedule A are relied upon in support of the claim for a declaration of breach of s20 pursuant to paragraph 1 of the summons. 111 The orders sought in paragraph 13 of the summons relate to four specified topics: tenanted accommodation in the relocatable section of the park, vans on roadways within the park, removal of fences and bollards etc, and preventing access to onsite or adjacent parking. The facts relied on in those four respects are not particularised in the summons. 112 Having regard to correspondence with counsel after the hearing, the plaintiff's position in relation to paragraph 13 is as follows. First, an injunction is sought restraining the defendants from breaching s20 in reliance upon the six episodes specified in Schedule A. For the purposes of paragraph 13, that is additional to the four topics mentioned above. 113 Secondly, in relation to the four topics mentioned, the plaintiff relies on the facts asserted in the plaintiff's submission documents insofar as there is evidence to support them.
Evidence and findings 114 I will first deal with the six episodes specified in Schedule A. 115 Grace McGowan. Mrs McGowan's complaint is that Blackington changed the locks on a bathroom facility. She was given a key to the new lock. The Tribunal subsequently awarded her $500 compensation for interference with quiet enjoyment. 116 Notwithstanding the determination of the Tribunal, the evidence in the present proceedings does not enable me to find that Mrs McGowan was entitled to exclusive use of the bathroom facility under her residential site agreement. I do not find that this complaint is made out. 117 Alan Shepherd. Mr Shepherd's complaint is that Mr Freire kicked him. Mr Friere denies that he did. I am not satisfied that the complaint is made out, nor that this was an infringement of quiet enjoyment if the complaint were made out. 118 Vincent Flanagan. For a time the defendants denied vehicular access to a person visiting Mr Flanagan. The plaintiff has failed to establish that owners have or have had an entitlement to vehicular access by visitors. Tribunal determinations which may imply such a right do not determine the matter here. 119 Restrictions concerning visitor parking within the park, promulgated by the park rules, do not imply such a right. They are as consistent with access by permission as with access by right. 120 George Jones, Darrell Jackson and John Luback. These cases are in the same category. 121 Tenanted accommodation in the relocatable area. I will continue to adopt the same terminology as previously used to differentiate between two kinds of occupiers: "owners", who own their own relocatable dwellings, and "tenants" who occupy dwellings owned by the park. By and large, owners have large, well maintained dwellings, many with attractive gardens. 122 There has been a considerable change in the mix of owners and tenants. When the defendants acquired the park in 1997 the composition was as follows or approximately so: 148 owners, 22 tenants, 10 tourist sites and 20 vacant sites. Currently the mix is as follows or thereabouts: 39 owners and 158 tenants. Many of the tenants and their families are supported by welfare payments of one form or another. Understandably, they do not have the same interest in the maintenance and presentation and the dwellings they occupy as owners do. That was apparent from a view of the park. 123 Initially it was Mr Tschannen's intention to develop the park by increasing the concentration of owners. A section, which was called "the relocatable section", was accordingly established in the northern part of the park. It is marked off by a low brick wall which is still present. The area was to be occupied exclusively by owners. However, the plan failed because a number of owners who had sites in other parts of the park declined to move and the number of owners in the park continued to decline. For these reasons, Mr Tschannen abandoned the idea and has installed accommodation on some of the sites in the relocatable section for occupation by tenants. 124 Mr Tschannen has since generated a plan to redevelop the site as an eco tourist resort. Conformably with the new plan, he is not taking in further owners and the proportion of tenants has grown substantially. The change in the mix of occupiers has made the park less congenial for the owners who remain. 125 The plaintiff seeks orders which would prevent the defendants from having tenanted accommodation in the relocatable area. 126 There is evidence of instances of disturbance caused by tenants who occupy accommodation owned by the defendants. The evidence does not establish, however, that such tenants, as a class, are so liable to cause disturbance that locating them near owners constitutes an infringement of the owners' right to quiet enjoyment. 127 Vans on roadway. I have seen these vans on a view of the park. They are on a roadway within the park. They do not prevent convenient access to the sites of the residents who complain. They do not have bathrooms, showers or toilets installed in them. They are not connected to a sewer line, but sink effluent is discharged into containers which the defendants empty regularly. Owners who are much closer to the vans have not complained. The vans are unsightly but they do not interfere with the quiet enjoyment of the owners who have complained about them. 128 Removal of fences. There has been only one case of removal of a fence erected by an owner at the site boundary. 129 It is not established that there is any statutory or contractual right to erect such a fence. It follows that removal of the fence in question is not shown to have been an infringement of the covenant for quiet enjoyment. 130 Bollards etc. In these instances where bollards have been placed on the boundary between the site and the roadway, there is no room for the owner's vehicle to be parked wholly on the site, and parking wholly on the roadway adjacent to the site or partly on the site and partly on the roadway impedes the free flow of traffic. 131 I am not satisfied that preventing vehicles from being parked partly on the site and partly on the roadway infringes the covenant for quiet enjoyment in these circumstances, particularly since there does not appear to be any statutory or contractual right to park vehicles within the residential park otherwise than wholly on the owner's site. 132 Dilapidated caravan. This complaint is not specified in Schedule A or in paragraph 13 as a particular of infringement of the covenant for quiet enjoyment, but it is the subject of evidence from Mr Hogg referred to in the plaintiff's written submissions on the topic of quiet enjoyment. So I deal with it. 133 Mr Hogg says a dilapidated caravan was placed at the rear of his site, that was infested with rats and was very smelly. Mr Tschannen says a van was placed on the site behind Mr Hogg's site but that it was there temporarily for storage and was not infested with rats. 134 There may have been a temporary interference with Mr Hogg's entitlement to quiet enjoyment. I am not satisfied that it was as bad as he says or that it was of more than of very brief duration. 135 I am not satisfied that the episode involved an intention to harass Mr Hogg. 136 The episode might have given rise to an entitlement to a small award of compensation at the hands of the Tribunal. It is of insufficient significance to lend weight to the plaintiff's claim for the relief sought in these proceedings. 137 Bins. This topic, like the last topic, is not particularised in Schedule A or in paragraph 13 of the summons. But evidence relating to it is referred to in the plaintiff's written submissions. 138 Mr Hogg and Mr Jackson complain about the placement and emptying rubbish bins. Attention was drawn to a particular bin near the waterfront which, I agree, detracts from the ambience of that area of the park and from the outlook from sites nearby. There was evidence that bins and this bin in particular were not emptied regularly and stank. 139 There is other evidence that a bin in that part of the park is reasonably required and that bins are emptied regularly and checked even more regularly to ensure they are emptied as may be required. 140 I am not satisfied that placement of the particular bin constitutes an interference with the quiet enjoyment of any owner's site. Even if it technically does, the interference is insufficient to lend weight to the claim for relief in these proceedings. 141 I am not satisfied that bins have not been emptied with sufficient regularity to avoid nuisance to residents. 142 Conclusion. No case has been made for relief based on asserted breaches of the covenant for quiet enjoyment.
Access (paragraphs 1(b), 6 and 8) 143 This section of the judgment deals with paragraphs 1(b), 6 and 8 of the summons.
Summons 1. A DECLARATION that the defendants have contravened the provisions of the Residential Parks Act ("the Act") by:- … (b) breaching s 30 of the Act; … the particulars of which breaches are Schedule A to this Summons.
144 In Schedule A to the summons in its final form, seven breaches of s30 are specified, being - Contravention Date of Contravention Nature of Conduct Resident Restrict entry of resident 28/11/2001 Blackington refused to issue keycard which effectively operates the boomgate Grace McGowan Restrict entry of resident 28/11/2001 Blackington refused to issue keycard which effectively operates the boomgate Gary McGowan Restrict entry of resident 28/11/2001 Blackington refused to issue keycard which effectively operates the boomgate Warren & Jennifer Hill Restrict entry of resident 28/11/2001 Blackington refused to issue keycard which effectively operates the boomgate Darrell Jackson Restrict entry of resident 30/11/2001 Blackington refused to issue keycard which operates the boomgate Vincent Flanagan Restrict entry of resident 16/02/2002 Blackington refused to issue keycard which operates the boomgate Margo Knight Restrict entry of resident 11/02/2002 Blackington did not provide working keycard for boomgate Yvonne Hughes
Plaintiff's outline 145 The following is an extract from the plaintiff's "Outline" document.
Declaratory orders under ss 42 and 43 of the Fair Trading Act.
· The Contentions of Fact set out the plaintiff's position as to the conduct which it is alleged is misleading, deceptive and/or unconscionable. · A number of principles can be drawn from the s 52 cases in the Federal sphere. These are, in summary:- Section 42 (misleading and deceptive conduct) and s 43 (unconscionable conduct) apply across the spectrum from conduct directed at the public at large to private negotiations between two parties: Concrete Constructions (NSW) Pty Ltd v. Nelson (1990) 169 CLR 594. Conduct alleged to be misleading and deceptive must appear so to the reasonable person within a class made up of persons to whom the conduct was directed - Compomar Sociedad, Limitada v. Nike International Ltd [2000] HCA 12; (2000) 202 CLR 45 at 85-87, pars [103]-[105]:- "The initial question which must be determined is whether the misconceptions, or deceptions, alleged to arise or to be likely to arise are properly to be attributed to the ordinary or reasonable members of the class". It is submitted that the relevant class here is "holders of residential site agreements within a residential park". · There is no requirement to prove that there was an intention to mislead or deceive. In Yorke v. Lucas, (1985) 158 CLR 661 at 666, the High Court said:- "It is, of course, established that contravention of [s 52] … does not require any intent to mislead or deceive and even though a corporation acts honestly and reasonably, it may nonetheless engage in conduct that is misleading or deceptive". · Section 51A of the Trade Practices Act deals with unconscionable conduct. The following principles may be useful:- Unconscionable conduct is that which supports the grant of relief on the principles set out in specific equitable doctrines established by courts of Equity - see ACCC v. Samton Holdings Pty Ltd [2002] FCA 62; (2002) 189 ALR 76. The concepts in Blomley v. Ryan (1956) 99 CLR 362 are relevant. Fullagar J said (at 415):- "The circumstances adversely affecting a party, which may induce a court of Equity either to refuse its aid or set a transaction aside, are of great variety and can hardly be satisfactorily classified. Among them are poverty or need of any kind, sickness, age, sex, infirmity of body or mind, drunkenness, illiteracy or lack of education, lack of assistance or explanation where assistance or explanation is necessary. The common characteristic seems to be that they have the effect of placing one party at a serious disadvantage vis-à-vis the other". · The Macquarie Dictionary defines the term "unconscionable" as "1. Unreasonably excessive. 2. Not in accordance with what is just or reasonable; unconscionable behaviour. 3. Not guided by conscience, unscrupulous". Restraining and mandatory orders arising out of various sections of the RP Act (orders 6 …) · The orders sought here relate to:- breaches of s 30 of the Act (access to the Park). ….. Again, the declarations sought elsewhere in the Amended Summons are the jurisdictional basis for the injunctive relief. Plaintiff's contention of fact 146 The following is an extract from the plaintiff's "Contentions of Fact" document. Access to the Park · Boom gates were installed at the Park entrance to regulate traffic in and out of the Park in November 2001. The gates were left open while testing was undertaken and cards issued to the residents, and on 28 November 2001 the boom gates commenced operation. Mr Kafer, the security guard, was asked to operate the gates that day since a number of residents had not yet received their cards. · The new boom-gate regime was announced in the "Village News" of 13 November 2001. It said, in part:- "We would like the boom gates to start operation on the 28th November, 2001. In order for the procedure to be carried out efficiently we would appreciate if all residents would kindly observe the following steps to ensure that all residents are issued with a card. Failure to pay for the boom gate card will result in your car being locked out of the park". · The resident was requested to bring their driver's licence and registration papers, together with a fee for $15.00, to the Park office on a particular day to be issued with a card. The Village News did not disclose that the registration details and driver's licence number was to be entered into the computer. · A number of residents gave evidence about having difficulties in obtaining access cards. All of the witnesses dealt with Lynda Tschannen.· • Mr Adams had a Site Agreement which had the space in standard clause 32.2 ruled out. That clause reads:- "The resident agrees to pay a deposit of $------- (no more than $15.00 ) for each boom gate key". Lynda said to him, "I don't care about the terms of your agreement". He also objected to his driver's licence and registration details being entered into the computer. · • Mr Flanagan, who is elderly and needs a scooter to get about the Park, and who has carers and helpers to assist with his daily activities, was told by Lynda Tschannen that without a drivers licence and vehicle registration his application for an access card was "no go".· • Mr Hogg sought an access card, and was willing to show his documents but not willing for the driver's licence and registration to be entered into the computer. He asked for an access card on a number of occasions before obtaining an order from the Tribunal for an access card.· • Mr Jackson sought a card but did not wish his details to be recorded. While he was waiting for the Tribunal order, his car was stranded outside the gates. • Mr Jones was refused a card until he provided his registration number, and had to obtain a Tribunal order for a card for his carer, since he suffers from lymphoma. · • Mr Luback had to pay $15.00 for a card when his agreement specified that he did not have to pay. The money was later refunded. He obtained an order for access for his visitors on the basis of the Park Rule relating to visitor parking in the relocatable section.· • Mr McGowan was refused a card without production of his licence and registration. • Mrs McGowan provided her licence number to Ms Tschannen but was refused a card without provision of her licence and registration papers. She was told, "No licence, no registration, no card".· • Mr Shepherd offered to provide his car registration number, but without provision of his driver's licence and registration papers Lynda told him, "you are not getting a card". Most of the listed residents obtained a Tribunal order granting them an access card against the park owner. There are now no problems in relation to access cards, except that Mrs Knight was informed by way of these proceedings that hers was available at the office. She has still not received it. She is now living in a retirement village.. · A number of residents gave evidence as to problems arising from time to time with the operation of the boom gates.· • Mr Clark's car was towed away in September 2002 when he was stranded at the front gate by the boom gate failing to work. He had not had any previous problems, and was not cross-examined on whether he had used the gates in a way which would cause the card to cancel. • Mrs Hughes gave evidence of being locked out due to the "anti-passback" effect of the boom gates, after she had been taken to hospital by ambulance and returned by taxi. • Mrs McGowan had a litany of problems with her access card. Again, there are currently no problems with the ongoing use of the boom gates. · The plaintiff submits that the conduct of the defendants in relation to the boom gate was unconscionable, misleading and deceptive. Many of the residents are elderly, some are ill (such as Mr Clark and Mrs Hughes in particular) and many of the witnesses live in the far section of the Park. Mr Clark gave evidence of his difficulties in walking from the front gate when stranded outside the Park. He was not cross-examined on the explanation given by Mr Tschannen for card cancellations, that is, that cards were cancelled only when residents misused them by "tailgating" or "double-dipping" (ie, following another car into the Park, thus disturbing the "anti-passback system"). While it is accepted that the system does function in this way, the manner in which the keys to the boom gates were controlled, as well as the waving away of the witnesses' concerns about privacy by Mr Tschannen in the witness box and the office staff in the residents' evidence, indicate a dismissive attitude on the part of Park management to the legitimate issues raised in these proceedings. · There was also an issue raised in the proceedings relating to visitor parking. Visitor parking is not dealt with in the Residential Parks Act, but in this case it is covered by the Park Rules. At various times there have been rules in place which cover visitor parking within the park (see the relocatable section visitor parking rule, referred to above). Some of the residents bought their homes in the park at a time when the relocatable section visitor parking rule was part of the Park Rules. · Mr Kafer, the security guard at the time, met with Mr Freire and Mr Tschannen in about mid-December 2001. He says that he was given a list with names on it and was told by Mr Freire, "Here is a list of residents, and their site numbers, who have caused us aggravation in the Tribunal. If any of these people have visitors or anyone attending their site then they are to be told to park in the visitor's car park and walk". Mr Kafer replied, "That's discrimination". Mr Freire said, "So what" and Mr Tschannen said, "Be careful with the list. Make sure no-one sees it". The list was a copy of a list attached to the computers in the shop which was a reminder that the residents listed had applications before the Tribunal relating to the validity of a rent increase. However, on the list given to Mr Kafer (which became Exhibit D), that heading was removed. Mr Tschannen and Mr Freire disclaimed the conversation alleged by Mr Kafer. Mr Kafer's contemporaneous notes (both to the Park in the security report and to his employer in the IPA logbook) provide corroboration of the policy and Mr Kafer's involvement in it. Mr Tschannen's denials of the conversation (given in cross-examination; on affidavit, he said he did not recall the conversation) were not believable given the corroboration of Mr Kafer's notes. · On 27 December 2001, Mr Kafer was approached by Mrs Jackson, a resident of site 233, in the relocatable section. She said to him, "How come my neighbours are permitted to have visitors and for those visitors to park on their site, whereas I'm not permitted? I had visitors over Christmas that were told to park in the visitor's car park and walk down". He said, "What site are you from?" She said, "233". He then checked his list, and saw her site number. He said, "Have you had any dealings with the Tribunal"? She said, "Yes". He said, "That's probably the reason". Mr Kafer was cross-examined on this evidence, as was Mrs Jackson. Neither of them agreed that the conversation was to the effect as put by the defendant, that Mrs Jackson gave Mr Kafer a message for Mr Tschannen. Mr Kafer made a note in the memo book, the original of which was handed in to the office at the end of his shift, and noted the following account of the conversation:- "#233 conversation tell Warren to be careful with discriminatory practice of access by not allowing Tribunal people visitors but allowing non-tribunal in". It was put to Mr Kafer that this note was a report of a message to Warren from Mrs Jackson to be passed on by him, but he denied that, and it was also denied by Mrs Jackson. The entry made by Mr Kafer on the same day in the IPA logbook (which was not given to the Park) reads:- "1600 Has conversation with occupant of 233 knows about management practice of not allowing certain people visitors cars into park". Even on the contention of the defendant in cross examination of Mr Kafer - which was that the note constituted a message to Mr Tschannen, not confirmation of the practice itself - does not explain away the note in the IPA logbook which refers directly to the existence of a practice. · There is further corroboration of the practice in the evidence that persons visiting sites on Mr Kafer's list were, in fact, denied access for their visitors, while other persons were allowed visitors:-· • Mrs Brown gave evidence that she was denied an access card by Lynda Tschannen on the grounds that she had no car. She said that her children stopped visiting her once the boom gates were installed. · • Mr Clark gives evidence of two occasions when his daughter was not allowed to enter the Park, notwithstanding the fact that his site has adequate space for the parking of two cars (as acknowledged by Mr Tschannen in a letter to Mr Clark of 26 March 2002). Mr Clark said he had to attend the office and plead with Mr Frost himself, who then let her in but denied her exit later that day. Mr Clark suffers from a serious muscle-wasting disease and his site is some distance from the front gate.· • Mr and Mrs Newnham's daughter, Lesley Dowds, gave evidence that she was not permitted to park at her parent's house in May 2002, notwithstanding that she had been able to do so before. She noted on that occasion that her parents' neighbour, Bob, had visitors.· • Mr and Mrs Dumbleton tried to visit her brother, George Jones, and was told by Lynda Tschannen that "You'll have to park outside and walk up". Mr Dumbleton said, "My wife is very ill and can't walk up", and she replied, "You'll have to park outside". Mr Dumbleton gave evidence that on an occasion when neither Mr Tschannen nor Lynda Tschannen were in the office, they were allowed to drive to Mr Jones' site. Mr Jones lives in the relocatable section of the Park, near the river, the part of the Park the furthest distance from the entrance.· • Mr Hogg received a letter on 5 February 2002 stating that his visitors would not be allowed to park within the Park. He, too, lives in the relocatable section.· • Mr and Mrs Jackson's daughter was not permitted to re-enter the Park at Christmas 2001 and when Mr Jackson enquired as to why, he was told "you are on the blacklist because you had gone to the Tribunal".· • Mr Luback's visitors are not permitted to enter the Park, notwithstanding an order from the Tribunal to that effect. Each of these persons appears on Mr Kafer's list. · The visitor parking areas are very restricted - there are eight visitor parking spaces at the front of the Park. If they are full, and a car is not allowed into the Park, the visitor must park outside the Park surrounds on the roadway. There was evidence from a number of residents about problems with cars being vandalised and concerns about parking cars away from the residential site. · The conduct of the defendants, in particular the first defendant, in directing or allowing differing interpretations of the Park Rules is both unconscionable, given the level of distress it caused the residents, and misleading and deceptive, in that the park management did not comply with the contention in the Park Rules from time to time that visitors may park in the relocatable section. · Staff of the Park have used access to the boom gates to enforce other provisions of the agreements between the residents and the Park, or to otherwise regulate the behaviour of the residents.· • Mrs Burkitt gives evidence that she sought access on 22 June 2002, when her access card did not function. Mr Frost, the caretaker, said to her, "Are you going to park at your designated car space?" She said, "I will park at my site". He said, "I can leave you waiting there for three weeks". He left her waiting there for a short period and she was then allowed entry.· • Mr Kafer was told by Mr Freire on 28 November 2001 to "stop Alan Shepherd from leaving", and given the reason that he was "going to Court that day". Mr Kafer raised with Mr Freire his view that "preventing people from leaving is deprivation of liberty" and that "you want to be careful". Mr Kafer was cross examined about this matter but did not resile in any important way from his evidence. Mr Shepherd was in fact blocked from exiting on that day and drove over part of a garden bed to get out.· • Mr Flanagan gave evidence that on the Tribunal ordering that he be provided with an access key, he was given one which did not work. The Park wrote a letter to him dated 24 January 2002 claiming that provision of an access key was all that the order required, and on 27 February 2002 Mr Flanagan obtained an order that he be provided with a key that did, in fact, work.· • Mrs Hill gave evidence (on which she was not cross-examined) that her card was cancelled after another resident, Mrs McGowan, followed her car into the Park. · Mr Luback gave evidence that Lynda Tschannen cancelled his card because "you let Grace in behind you … This is what happens when you go to the Tribunal". • Mr Luback had to cancel an appointment with his doctor as he could not be guaranteed re-entry to the Park.· • Mr McGowan gave evidence that his card was cancelled by Lynda Tschannen, who told him "the card was cancelled because you did not park in the designated car space near the visitor's car park".· • Mrs McGowan was told by Rosa (cashier) and Peter (security) that "the condition you get a card is that you park your car in your designated car space at the visitor's car park". · The cancellation of the cards is a breach of s 30 of the Residential Parks Act, in that the residents were restricted entry to the Park. Section 30 provides:- "(1) It is a term of every residential tenancy agreement in respect of residential premises in a residential park that, if the park owner has installed any locks or other security devices (such as boom gates) to restrict entry to the residential park … (a) the park owner must give a copy of the key or any other opening device or information required to open the locks or other security devices to the resident at the commencement of the agreement, and (b) the park owner must maintain those locks or security devices in working order". · Correspondence was sent by the Park, under the name of Banora Point Caravan Park and signed by Mr Tschannen on behalf of Blackington, on three occasions alleging that the use of the card with another car would automatically cancel the card. While this would be true if other factors were involved - for example, if the other car were used to enter, when the last use of the card had also been for an entry - it is not true as a general statement and, couched in the terms of the letter to Mrs McGowan dated 18 June 2002, it is misleading. That letter was exhibit H in the proceedings. In similar terms was the letter from Blackington Pty Ltd to Mrs Hughes (annexure WET 2-9, part of exhibit 5), in which it was said:- "We wish to remind you that your boom gate key card is attached to your registration of your vehicle and subsequently does not recognise any other vehicle". · The letter suggested that if Mrs Hughes were to continue to be ill, she may wish to make "some alternative arrangement" as to access to the Park. Mr Tschannen was cross-examined on the terms of each of these letters and, although he failed to agree that the statement was wrong, he did at length agree with the contention that the factor of using a different car would not automatically cancel the card. For the Park to write to an elderly, ill woman in such terms constitutes an unconscionable use of the management powers. · The requests, on various occasions to various residents (see, for example, Exhibit H to Mrs McGowan), by the Park for a further $15.00 to reprogram a boom gate key, were also misleading, in that the $15.00 was a security deposit and unless a totally new key needed to be issued and the old one was not returned, no further deposit was payable. Although on the occasions when a second $15.00 was paid (or a first $15.00, where the agreement provided for no payment for a key) the moneys were refunded, the distress to residents and the confusion caused by the misleading requests must amount to unconscionable conduct on the part of the defendants. · The defendant's choice of a system which had a built-in cancellation where a resident did not use the card strictly on an in/out basis (the "anti-passback system") arguably is in contravention of s 30 of the Act, in that the Park Owner must maintain the locks and security devices (in which term the Act includes boom gates) in "working order". The fact that, even though the gates were functioning in the manner intended by the Park, they still acted to restrict access to Mrs Hughes in circumstances where she was taken from the Park by ambulance, begs the question of whether the gates themselves breach s 30. Further, there was no compliance with the requirement in s 30(1)(a) that the park owner provide "information required to open the locks or other security devices" if that section can be read as an explanation of the "anti-passback" system. There is some indication that the information was given on an ad hoc basis as an explanation for the cancellation of the card, but none that would fulfil the requirement of the subsection.
Orders sought as to Access to the Park · The evidence led by the plaintiff establishes grounds for declarations sought in paragraph 1(b) of the Amended Summons (with reference to the folio numbers of schedule A to the Summons):- 12 - refusal to provide key which effectively operated the boom gate to Mrs McGowan; 13 - refusal to provide key which effectively operated the boom gate to Mr McGowan; 14 - refusal to provide key which effectively operated the boom gate to Mrs Hill; 15 - refusal to provide key which effectively operated the boom gate to Mr Jackson 16 - refusal to provide key which effectively operated the boom gate to Mr Flanagan; 17 - refusal to provide key which effectively operated the boom gate to Mrs Knight (although it is conceded that a key is available for collection) 18 - refusal to provide key which effectively operated the boom gate to Mrs Hughes. · Further, the above facts are sufficient ground for a finding that the provisions of ss 42 and 43 of the Trade Practices Act have been breached by the defendants. · The fact that there is no current difficulty with the operation of the boom gates should not dissuade the Court from making orders as sought in paragraph 6 of the Amended Summons, particularly in the light of the evidence that the entry to the Park has been used, in some circumstances, as an enforcement method. The manner in which the gates operate should be covered by order 7(b)(ii), in that the "anti-passback system" is not a system which complies with the provisions of the Act and that maintaining that system does not comply with the requirement that the gates be in "working order" at all times to effect entry to the Park for residents.
Undertaking proffered by the defendants 147 Concerning paragraph 6 of the further amended summons, the defendants submitted that no order should be made and that, accordingly, no undertaking should be required in lieu of an order. However, the following undertaking was proffered, unconditionally and without admissions, in the event that the Court was of the opinion that such an undertaking was warranted. The defendants and each of them undertake to the Court that they will not wilfully breach, or cause to be breached, section 30 of the Residential Parks Act.
Defendants' outline 148 The following is an extract from the defendants' "Outline" document.
· The following question and answer appear at page 225 of the transcript: R. Was one of the policies that, if residents did not comply with other aspects of what you considered their obligations under the park rules and under their agreements, was part of your instructions to staff that they could cancel cards on that ground? A. That wasn't my instruction, no.
· The evidence does not support the suggestion that residents were "targeted" by having their boom gate cards cancelled because they incurred the defendants' displeasure.
· This can be simply demonstrated: The plaintiff contends that the list of names given to Mr Kafer sets out those persons who were to be singled out for unfair treatment. One would expect, therefore, that the affidavits of those persons would detail the ways in which they were targeted by the defendants. The following are the persons on the list, and the defendants' comments on their affidavits: a Mrs McGowan and Mr Garry McGowan They are the principal complainants. Their affidavits show that they simply refused to comply with the defendants' reasonable directions about the use of their vehicles. b Brown This lady is no longer an owner. She was declined a card because she did not have a car. c Colston This person is still an owner, but has sworn no affidavit at all. d Pollard Mr Pollard is still an owner. He makes no complaint about being "targeted" in his affidavit. e Hill Mrs Hill is still a resident, and has sworn an affidavit. Apart from one occasion when, she says, her card was cancelled because someone else "tailgated" behind her, she has had no problem: see paragraph 19 and 20 of her affidavit of 30 January 2003. f Shepherd Mr Shepherd makes a complaint in paragraph 34 of his affidavit of 30 January 2003, but provides no details from which could infer that he was being singled out. g Burkitt She is still an owner, and is obviously antagonistic to the defendants. She would, one would think, not hold back in her criticism of the defendants. However, she complains of only a single problem, on one day, ie 22 June 2002, with the boom gate or access card: see paragraph 20 of her affidavit. h Skennar Mr Skennar is still a resident. He makes no complaint at all about a boom gate card, or about access i Parks This person is apparently no longer a resident, and has sworn no affidavit. j Flanagan Mr Flanagan is still a resident. He does not have a car. On 27 February 2002, the Tribunal made an order about a card in his favour: paragraph 15 of his affidavit dated 30 January 2003. He does not complain of any problem since that time. k Jones Mr Jones obtained his card shortly after the gates were installed: paragraph 6 of his affidavit dated 29 January 2003. He complains of no problem since that time. l Adams Mr Adams is still a resident, and has had no problem at all with the boom gate since he obtained his card: paragraph 14 of his affidavit dated 29 January 2003. m Clark He is still a resident. In his affidavit, he agrees that once he got his boom gate card, there was no problem: see paragraph 21 of his affidavit of 2 January 2003. n Hughes Mrs Hughes's only complaint is that her card did not work on the one occasion when she (in a taxi, and dressed in her nightgown) could not use it to enter the park, and when she had not used the card to leave the park: see paragraph 6, 7, and 8 of her affidavit. o Hyslop This person is still an owner, but has sworn no affidavit at all. p Newnham This person is no longer an owner, and has sworn no affidavit. q Kelly Mr Kelly is still a resident, and he makes no complaint about the boom gates r Luback Mr Luback is no longer an owner, but has sworn an affidavit. Apart from one occasion when, he says, his card was cancelled because someone else "tailgated" behind him, he has had no problem: see paragraphs 12, 17, 18, and 19 of his affidavit of 31 January 2003. s Jackson Mr Jackson agrees that on the day when the Tribunal made orders in his favour, ie 10 December 2001, he was issued with a boom gate card, and he complains of no problem with it: paragraph 18. t Smart This person is still an owner, but has sworn no affidavit at all. u Fleming This person is still an owner, but has sworn no affidavit at all. v Hogg Mr Hogg is, so it seems, one of the defendants' principal antagonists. However, in his several affidavits, he complains of no problem at all from the time he received his card. w Kaiser This person is still an owner, but has sworn no affidavit at all. x Iden Mr Iden is still a resident, and he makes no complaint about the boom gates. y Harrup This person is still a resident, and has sworn no affidavit. Paragraph 8 The defendants will respond to this issue when it is clear how the plaintiff makes out its case. However, the defendants say that there is no utility in the proposed declaration, and they rely upon their comments under the heading Paragraph 6, above.
Evidence and findings 149 Seven breaches of s30 are alleged, each in relation to a separate resident, namely, Grace McGowan, Garry McGowan, W and J Hill, Mr D Jackson, Mr V Flanagan, Ms M Knight and Ms Y Hughes. 150 The plaintiff seeks a declaration that the defendants' conduct in relation to the boom gates has been misleading, deceptive and unconscionable; and an injunction restraining further breach of the section. 151 Boom gates were installed in November 2001. I accept that this was well intentioned, having as its objective the prevention of unauthorised vehicles from entering the park and causing congestion. 152 Residents were issued with key cards with which to operate the boom gates. They were required to lodge a $15 deposit against loss of the card and were also required to produce their drivers' licences and car registration certificates. 153 The boom gates were programmed with what has been called an "anti-passback" function. The card would activate the gates only in a sequence of entry-exit-entry and so on. If an attempt was made to use the card out of sequence, that is, for two entries or two exits in a row, the card did not work on the second occasion and was disabled. It had then to be reprogrammed at the office. 154 The concept behind these features was that a resident's car could pass freely in and out of the park but the key-card could not be used by residents to allow another vehicle to follow their vehicle into the park. 155 These arrangements were in breach of s30. The section provides, in unequivocal and unqualified terms, that, where boom gates are installed, residents must be provided with an opening device. Requiring production of a drivers' licence and a car registration certificate as a condition for issue of a card was in breach of the section. The anti-passback function was also in breach of the section because it limited the residents' capacity to open the boom gates with the device provided. It is difficult to see how anyone reading the section could have read it otherwise. 156 It is another matter whether residents have a right to bring or allow vehicles into the park, whether their own or those of their visitors. That depends on other statutory and contractual considerations. But, whatever controls the defendants were entitled to impose on the entry of vehicles, that could not be done by conditions attached to the issue and operation of key cards, contrary to s30. 157 Mr Tschannen also stated in letters to a number of residents that the key card would automatically cancel if used for a car other than the resident's vehicle. That was false. He also wrote in the park newsletter that the card was attached to the resident's vehicle. Mr Tschannen said in his evidence that that was true in sense. It may have been the intent with which the system was installed, but Mr Tschannen cannot have believed that what he said in these respects was correct. These statements were false and misleading in that they were calculated to lead residents to believe that the card would not operate to allow another vehicle through. This was an attempt to implement a policy by false and misleading statements. 158 Mr McGowan, Ms McGowan, Ms Hill and Mr Jackson refused to produce their licences and car registration certificates. Mr Flanagan used an electric scooter. He could not produce a drivers' licence or car registration certificate. These persons were refused cards. On 10 December 2001, the Tribunal made orders that they be issued with cards. 159 On 14 January 2002, Ms Hughes was taken to hospital by ambulance. She returned by taxi later that night. Her card did not work to re-enter the park because it had not been used to exit in the ambulance. On 27 February 2002, the Tribunal ordered that she be given a key card providing free and unfettered access via the boom gate. This was a clear determination by the Tribunal that the anti-passback function was in breach of the Act, as it plainly was. 160 Ms Knight cannot drive, but she applied for a card, as she was entitled to do. On 17 June 2002, the Tribunal ordered that she be issued with a card. 161 These determinations conveyed to the defendants that they could not impose conditions on the issue of key cards or limit the operation of key cards as opening devices. 162 In June and July 2002, issue of a replacement card was withheld from Ms McGowan, in an attempt to extract an undertaking from her as to where her car would be parked. Mr Tschannen said he was personally unaware of that. I have no reason to doubt his word in that regard. But Blackington is responsible for this wrongful conduct being, as it was, in breach of s30. 163 Inevitably, there were instances other than Ms Hughes' experience (as above) where key cards were disabled because of the anti-passback function. 164 Continuation of the anti-passback function up to and including the hearing has been in clear breach of s30 and in the face of unequivocal Tribunal determinations which were plainly correct. 165 Before trial, the defendants offered the undertaking referred to above. But, that was not done with an appreciation that the anti-passback function was in breach of s30, as is clear from the offer made at the hearing to which I will now refer. In the course of final addresses, the defendants, through their counsel, said they would discontinue the anti-passback function or not as the plaintiff wished. The plaintiff opted for discontinuance. 166 I have no reason to doubt that the anti-passback function has now been discontinued. 167 The plaintiff's case in relation to the boom gates includes an assertion of unconscionable use of the barrier, in breach of s30, as a means of oppressing residents who took complaints to the Tribunal. This was allegedly done by denying access to the visitors of unfavoured residents. 168 Mr Kafer gave evidence that in mid-December 2001, Mr Freire in Mr Tschannen's presence, gave Mr Kafer a list of residents said to have caused trouble in the Tribunal. Mr Kafer said he was told by Mr Freire that anyone visiting those residents was to park in the visitors' car park (which is on the street side of the boom gates), and that he (Mr Kafer) was to be careful with the list and to be sure not to show it to anyone. 169 Mr Kafer said he protested that the instruction was discriminatory at the time, but that he implemented the instruction on occasions. 170 Mr Kafer said that, on 27 December 2001, he spoke to a resident who queried why her neighbours were allowed to have visitors park at their sites, whereas her visitors were not allowed in. Mr Kafer said he looked to see if the resident was on the list, and she was. He asked if she had had any dealings in the Tribunal. She said she had. He told her that was probably the reason. 171 Mr Kafer's account of these events was strongly corroborated by other evidence. The following entries, dated 27 December 2001, appeared respectively in Mr Kafer's duplicate memo book and in his log book:
#233 Conversation tell Warren to be careful with discriminatory practice of access by not allowing Tribunal people visitors but allowing non Tribunal in. Log book 27.12.01
1600 HPS conversation with occupant of 233 knows about management practice of not allowing certain peoples visitors cars in to park. 172 Mr Kafer said the original of his daily memos went to the office. 173 Ms Jackson and her husband occupied site 233. She is, accordingly, identified as the person referred to in Mr Kafer's memo and log books. She said, in her evidence, that, shortly after Christmas 2001, she complained to Mr Kafer that some residents were allowed to have visitors bring their cars into the park whereas, over Christmas, her visitors had not been allowed in. She said that he asked whether she had had dealings with the Tribunal and that, when she said she had, he asked for her name and consulted a notebook. Mr Kafer had then said that she was in the book and that was why. 174 Mr Jackson also gave evidence of a conversation with Mr Kafer. He also says he was told that he was on the blacklist for visitor access because he had gone to the Tribunal, but that Mr Kafer nonetheless allowed Mr Jackson's daughter in to retrieve a boat. 175 Mr Tschannen and Mr Freire acknowledged the existence of the list but they said it had been brought into existence for a different purpose, namely, as a list of persons who had proceedings pending in the Tribunal in relation to rent and who should, accordingly, not be approached for the time being concerning arrears of rent. This was a plausible explanation for the provenance of the list and for giving a copy of it to Mr Kafer since it was part of his duties to collect rent arrears. However, that did not exclude use of the list for another purpose as well, as the plaintiff contended. 176 Mr Tschannen and Mr Freire denied that they had been complicit in any scheme to oppress troublesome residents by denying access to their visitors. 177 Mr Tschannen said he may have been present when Mr Kafer was given the list. He did not explicitly deny being present at a time when Mr Freire allegedly gave instructions to Mr Kafer as to how Mr Kafer was to use the list. However, I would take his evidence as a whole as amounting to such a denial. 178 Mr Freire said he told Mr Kafer on a number of occasions that the residents on the list were those who were not to be approached regarding arrears. He denied telling Mr Kafer that, if residents on the list had visitors, the visitors were to be told to park in the visitors' car park. 179 Mr Freire accepted that he received daily memos from Mr Kafer, as Mr Kafer had said. He accepted that it was part of his duties to review the reports and he said that he read them. He said he did not recall the passage in the memo of 27 December 2001 to which I have referred. 180 There are 26 names on the list. Apart from the Jacksons, there was evidence of access denied to visitors in relation to five other residents on the list, namely, Clark, Newnham, Jones, Hogg and Luback. Mr Kafer was not mentioned in relation to any of these instances. The evidence in relation to them is, however, consistent with a dispute about access to visitors generally or, in some instances, to specific parking problems relating to a particular site. These instances do not, therefore, corroborate Mr Kafer's evidence of a discriminatory policy. 181 In support of the defendants' position that there was no such policy, counsel for the defendants observed that there was no direct evidence of any such policy being implemented except in the case of the Jacksons. There were, however, the equivocal instances to which I have referred and it may be that other park staff, as in the case of Mr Kafer, were reluctant to implement such a policy if it existed. 182 In summary, Mr Kafer's account of the matter is corroborated by his contemporaneous writings and by the Jacksons. I accept that evidence in preference to that of Mr Freire on this issue. I find that there was such a policy of discrimination and that Mr Freire, in his capacity as operations manager, was either the author of it or complicit in it. 183 Mr Kafer says that Mr Tschannen was present when he was given the list and the relevant instructions by Mr Freire. There is no corroboration of that. It is a serious allegation. I am not satisfied that Mr Tschannen was in fact present on that occasion, that he was complicit in the policy or that he knew of it. 184 Because of Mr Tschannen's failure to appreciate that the imposition of conditions on the issue and operation of key-cards was in breach of s30, a declaration should be made that the defendants' conduct in that regard was in breach of the section. 185 There is no reason to apprehend further breach of s30 in view of the agreement to discontinue the anti-passback function and the foreshadowed declaration. 186 The statements by Mr Tschannen that key cards would automatically cancel if used for another vehicle and that the card was attached to the respondent's vehicle were knowingly false and misleading. That activates the court's discretion to grant an injunction restraining repetition of such conduct without necessarily apprehending repetition. I do not think there is any serious risk of repetition of such conduct. 187 I am not satisfied that there is any other reason for making such an order. Use of the restrictions on the operation of key-cards as an instrument of discrimination against a resident who brought proceedings in the Tribunal was unconscionable. I have found that Mr Freire was at least complicit in that. I am not satisfied that the same can be said of Mr Tschannen, and Mr Freire has long since ceased to be employed at the caravan park. 188 In these circumstances, there is no occasion to make a further declaration about the nature of that conduct, nor to make an injunctive order in relation to that conduct. Nor is there, in the foregoing circumstances, any occasion to require an undertaking from the defendants in relation to breach of s30, in lieu of an order.
Assignment and interference with sales (paragraphs 1(c) and (f), 7 and 7A) 189 This section of the judgment deals with paragraphs 1(c) and (f), 7 and 7A of the summons.
7A. A DECLARATION that the conduct of the Defendants in relation to breaching the provisions of Part 10 Division 1 of the Act and in particular by:- (a) informing potential buyers of reloctable homes or rigid moveable dwellings that such moveable dwellings or reloctable homes have to be removed from the Park; and (b) interfering with the sale of moveable dwellings or relocatable homes; was:- (c) misleading and deceptive within the meaning of s 42 of the Fair Trading Act; and/or (d) unconscionable within the meaning of s 43 of the Fair Trading Act. 190 In Schedule A to the summons in its final form, four breaches of s41 are specified, being - Contravention Date of Contravention Nature of Conduct Resident Right to assign rights 06/03/2001 Blackington failed to comply with order of Tribunal to assign rights Barry & Lorraine Dumbleton Right to assign rights 02/03/2001 Blackington failed to comply with order of Tribunal to assign rights Gerhard Dieter Tacke Right to assign rights 09/03/2001 Blackington failed to comply with order of Tribunal to assign rights Bruce McKenzie Right to assign rights Blackington failed to comply with order of Tribunal to assign rights Leonard Duncombe
191 Three breaches of s82(2) are specified, being - Contravention Date of Contravention Nature of Conduct Resident Owner must not interfere with a sale 16/09/2002 Blackington tells potential buyers that residence will have to be removed from the park in circumstances where such interference is not permitted Leonard Duncombe Owner must not interfere with a sale 23/11/2001 Blackington tells potential buyers that residence will have to be removed from the park in circumstances where such interference is not permitted Brian & Annie Northcote Owner must not interfere with a sale Blackington tells potential buyers that residence will have to be removed from the park in circumstances where such interference is not permitted Fred & Shirley Fredson
Plaintiff's outline 192 The following is an extract from the plaintiff's "Outline" document. Restraining and mandatory orders arising out of various sections of the RP Act (orders …. 7 ….) · The orders sought here relate to:- …… breaches of ss 41 and 82 of the Act; and ……. Again, the declarations sought elsewhere in the Amended Summons are the jurisdictional basis for the injunctive relief.
Plaintiff's contentions of fact 193 The following is an extract from the plaintiff's "Contentions of Fact" document. Assignment of Site Agreements · A major issue in the proceedings related to the assignment of residential site agreements. The plaintiff alleges that the failure by the defendants to consent to the assignment of residential site agreements constitutes a breach of sub-ss 41(1) and (3) of the Residential Parks Act, which provide:- "(1) It is a term of every residential tenancy agreement that:- (a) the resident may, with the prior consent of the park owner, assign the whole or part of the resident's rights and obligations under the agreement … (b) the park owner must not make any charge for giving such a consent, other than for the park owner's reasonable expenses in giving consent. … (3) It is, however, a term of every residential site agreement that the park owner may not unreasonably withhold or refuse consent to an assignment …". · A number of witnesses gave evidence of the failure by the Park Owner to consent to the assignment of such agreements and the subsequent attempts by them to seek to enforce Tribunal orders that the agreements be assigned. · One such home belonged to Mr and Mrs Northcote. Mr Northcote advertised his home, located on site 88, and Ms Bishop answered the advertisement. The parties agreed upon a price and Ms Bishop called Mr Freire, the manager, to arrange an appointment. On 5 October she met Mr Freire. Her evidence was that he said to her, "You can sign a completely new lease and relocate the home to another site in the Park. It is not an option to have the existing lease assigned to you. There are special conditions about a possible rezoning of the relocatable section of the park". On 19 October 2001 Ms Bishop applied for, and obtained, a finding that the Park Owner had unreasonably withheld consent, and that the Park Owner enter into a consent by 5 pm that day. Mr Tschannen gave evidence that he considered that the agreement was not able to be transferred, as it was not the Northcote's principal place of residence, but there is no evidence, either in Mr Tschannen's or Mr Freire's evidence, of any conversation to that effect, and neither Ms Bishop nor Mr Northcote were cross-examined to suggest that that reason was put to them at the time. · Mr and Mrs Dumbleton sought to sell their home to Mr and Mrs Jackson in February 2001. They put in an application to Mr Tschannen, but were told by the Operations Manger, that "Mr Tschannen does not consent to the assignment of the lease". They applied to the Tribunal and on 5 March 2001, an order was made that the Park Owner consent. There was no indication given in Mr Dumbleton's affidavit as to the reason, but it appeared in cross-examination of Mr Tschannen that the reason was that the Jacksons had a small Maltese terrier and there was a "no dogs" Park Rules. The Tribunal order was not complied with.. · Mr Hogg gave evidence that the couple from whom he and his wife bought their site, the Hendersons, took action in the Tribunal, and later in the Supreme Court, for the assignment of a site agreement to the Hoggs. Mr McGowan gave evidence of an order by the Tribunal that the park owner consent to a transfer from a Mr McKenzie, and the subsequent failure to comply with that order. Mr Tacke and Mr Wadley gave evidence that a Tribunal order was made ordering consent to the assignment of Mr Tacke's residential site agreement, which was not complied with. · Mr Mistler gave evidence, and was not cross-examined, that Ms Tschannen told him "the transfer (from Mr Mistler's father-in-law, Mr Duncombe, to Mr Vallance) will not be approved and the park will be closed soon. The owners of mobile homes are required to move them off site at their own expense". Mr Vallance was told by Ms Tschannen that "the transfer will not be approved and the park will close soon. The lease will not be transferred". The Park was requested to consent to the assignment by letter from Mr Mistler of 18 August 2002, but were told by Linda, "mobile homes are not wanted on site and the lease will not be assigned". Mr Mistler appeared at a hearing of the Tribunal which ordered that the lease be transferred in the following week, and formally refused a stay. Mr Tschannen told Mr Vallance, "No matter what the Tribunal says, I will appeal the decision to the Supreme Court and the lease will not be assigned". Mr Vallance was not cross-examined on this conversation, although Mr Tschannen denied that it took place in those terms. An appeal to the Supreme Court was lodged, and Mr Vallance pulled out of the sale "because of all the difficulties I had had in trying to obtain a transfer of the agreement". · Mr Tschannen, in his affidavit evidence, sought to justify his failure to consent to requests for assignments as well as to explain the failures to comply with Tribunal orders, the subject of the subsequent convictions. His explanations are, in relation to the assignment of leases, not sufficient to show that his conduct was well-founded nor, of course, that the convictions should not stand. · The versions of the residents should be accepted over that of Mr Tschannen. Ms Tschannen, as noted earlier, was not called. Her evidence was, of course, critical to the case and her absence from the proceedings was unexplained. Her silence on the many important areas on which the defendant could have reasonably been expected to call her, can only give rise to the inference that her evidence could not have assisted the defendant's case. · The evidence of the residents as to the statements of Ms Tschannen should be accepted, not only on the degree of congruence between a number of witnesses, but also on the basis that the statements coincide with the expressed wishes of Mr Tschannen that he wishes to rid the Park of residential site agreements, and the fact that the only mention in the defendants' evidence as to the conversations between Ms Tschannen and the residents is the statement "I am not aware of the terms of the conversations" (or words to that effect). The residents' versions of what Ms Tschannen said are essentially uncontradicted. · Mr Tschannen agreed in the witness box that he had never consented to an assignment without the intervention of either the Tribunal or the Supreme Court. · Blackington Pty Ltd was convicted of failing to comply with a Tribunal order to consent to assign leases in relation to the Dumbleton to Jackson sale, the Tacke to Wadley sale, and the McKenzie to McGowan sale. Conditions Placed on Sale · An issue allied to that of the lack of consent is the consistent attitude of Park staff that residents were free to sell their homes, but in order to do so must find a buyer willing to remove the home from the Park. It is the plaintiff's case that the imposition of such a condition is contrary to s 82(1) of the Residential Parks Act, which reads:- "A [residential site agreement] may set out any restrictions on the sale of a relocatable home or other moveable dwelling while it is installed in the residential site. Any other such restriction that the Park Owner purports to impose is unenforceable". · Mr Fredson organised to sell his relocatable home to Mrs Nykfist, and gave evidence of a conversation with Mr Tschannen in which Mr Tschannen acknowledged that he knew, and impliedly approved, of the statements by Lynda that any relocatables sold had to be moved off-site. In cross-examination, Mr Tschannen denied that he knew of any such statements by Lynda prior to the affidavits being filed. He was cross-examined about whether he read a particular Tribunal decision in which such an allegation was made. He denied it, which denial is somewhat unbelievable in the context of these proceedings. Mr Fredson lost his sale after filing an application with the Tribunal for an order that the Park manager, owner, and staff not interfere in the sale of the home. · Mrs Knight was not cross-examined on her evidence that Ms Tschannen told her that "prospective buyers would have to remove the home from the site if they buy, and could not get a transfer of the lease", and "that's the way it is". · Mr Luback was told by Ms Tschannen that "you must have the house removed. You may not sell on site". He was not cross-examined on this evidence. · Only Mr Fredson was cross-examined, and Ms Tschannen did not give evidence. The evidence of the residents on this point should be accepted. Orders sought in relation to Assignment and Interference with Sale · The evidence led by the plaintiff establishes grounds for declarations sought in the Amended Summons (with reference to the folio numbers of schedule A to the Summons):- 19 - fail to assign rights relating to Mr and Mrs Dumbleton 20 - fail to assign rights relating to Mr and Mrs Tacke 21 - fail to assign rights relating to Mr McKenzie 22 - fail to assign rights relating to Mr Duncombe The declarations sought are based on breaches of s 41 of the Residential Parks Act. · The evidence led by the plaintiff establishes grounds for declarations sought in paragraphs 1(c) and (f) of the Amended Summons (with reference to the folio numbers of schedule A to the Summons):- 37 - interference with sale - Mr Duncombe 38 - interference with sale - Mr and Mrs Northcote 39 - interference with sale - Mr and Mrs Fredson The conduct of the defendant and of its employees, in particular Ms Tschannen, is such that an injunction restraining further breaches of the Act is appropriate. The plaintiff seeks orders as per paragraph 7(b) of the Amended Summons. Further, the conduct as a whole goes to ground the plaintiff's contention that the defendant has breached Part 5 of the Fair Trading Act (specifically, in acting unconscionably in both refusing consents and in placing conditions on sale, and in representations as to rights under the Residential Parks Act ).
Undertaking proffered by the defendants 194 Concerning paragraph 7 of the further amended summons, the following undertaking was proffered by the defendants, unconditionally and without admissions, on the same basis as in the case of paragraph 6. The defendants and each of them undertake to the Court that they will not wilfully breach, or cause to be breached, the provisions of Part 10 Division 1 of the Residential Parks Act.
Defendants' outline 195 The following is an extract from the defendants' "Outline" document.
Paragraph 7 The proposed order is entirely covered by the defendants' proposed undertaking.
Evidence and findings 196 Section 41 relates to consent to the assignments of a residential tenancy agreement. Section 82 prohibits interference by the park owner with the sale of a dwelling by a resident of a residential park. 197 In relation to failure to consent to assignments, the summons may have lost something in the course of the amendments which have been made. In paragraph 1 of the summons, the defendants' conduct is said to have been in breach of s41 (which allows assignment by consent and provides that consent not be unreasonably withheld) and a declaration is sought to that effect, whereas Schedule A specifies as the breaches of s41 as failure to comply with Tribunal orders to assign. (Paragraph 11 of the summons, which relates to breach of Tribunal orders does not pick up these instances.) If there was breach of s41, it was in unreasonably failing to consent irrespective of the Tribunal orders. In these circumstances, I believe I should take the gravamen of the plaintiff's case to be unreasonable failure to consent. 198 It is common ground that the defendants' procedure in dealing with assignments was to provide the resident with a form of assignment and to ask the resident to arrange for the prospective assignee to attend for an interview with Mr Tschannen. The form included provision for Blackington's consent. 199 Mr Tschannen agreed that he had never voluntarily consented to an assignment.
Duncombe to Vallance 200 Mr Duncombe is now deceased. Mr H Mistler was his son-in-law. On 30 July 2002, Mr Mistler wrote to the park manager giving notice of intention to assign Mr Duncombe's tenancy agreement and to sell Mr Duncombe's relocatable home to Mr H Vallance. He said that, on 31 July 2002, Ms L Tschannen told him that the transfer would not be approved, that the park would be closed soon and that caravans would have to be moved off the site at the owners' expense. 201 Mr Vallance said that, on the same date, 31 July 2002, Ms Tschannen told him that the transfer would not be approved and that the park would be closed soon. 202 On 17 August 2002, a bill of sale in favour of Vallance, conditional on the tenancy being assigned, was executed. On the following day, 18 August 2002, a letter was sent to the park owner advising of this. On 19 August 2002, Mr Mistler and his wife spoke to Ms L Tschannen who told them that the lease would not be assigned. 203 Mr Mistler said that, on 20 August 2002, he telephoned the park office and spoke with a person who identified himself as Warren (that would be Mr Tschannen) and that the person refused to give his full name and hung up. Mr Tschannen said he hung up because Mr Mistler was abusive. If that is so, Mr Mistler had reason to be. 204 An application was made to the Tribunal for an order that the lease be assigned. According to Mr Vallance, he telephoned Mr Tschannen, who said that no matter what the Tribunal said, he would appeal the decision to the Supreme Court and the lease would not be assigned. 205 On 10 September 2002, the Tribunal made a finding that consent had been unreasonably withheld and made orders that the park owner not interfere with the assignment, that consent be provided by 5pm on 13 September 2002 and that a stay of the orders be refused. 206 On 13 September 2002, Mr Vallance proffered rent at the park office. He was informed that rent could not be accepted because of an appeal to the Supreme Court. 207 Mr Vallance received correspondence concerning the Supreme Court appeal. On 8 October 2002, he decided to withdraw from the purchase because of the delay and because he needed to find accommodation quickly. 208 In November 2002, the Supreme Court was informed that Mr Vallance had withdrawn from the purchase and the appeal was discontinued. 209 Ms Tschannen was not called. Mr Tschannen did not dispute the substance of the foregoing course of events. I accept the account of the matter given by Mr Mistler and Mr Vallance. 210 It was submitted on behalf of the defendants that the Tribunal had no jurisdiction to order a park owner to consent to an assignment, and that the correct legal position was that an assignment was effective in law if consent was unreasonably withheld. Be that as it may, two things are clear. First, there being no valid reason for refusing consent, consent was unreasonably withheld. Secondly, Ms Tschannen's incorrect statement that, when the park was closed, dwellings would have to be moved from the site at the owners' expense, constituted interference with the sale of the dwelling in breach of s82. It may also be that an implied representation in the form supplied by Blackington that consent was necessary and the unreasonable refusal to consent constituted interference in breach of s82. 211 In any event, whatever the legal niceties of the matter might be, the conduct of Mr Tschannen and Ms Tschannen in relation to this transaction was oppressive and reprehensible.
Dumbleton to Jackson 212 On 20 February 2001, Mr Dumbleton went to the park office with Mr Jackson to lodge what he understood to be an application for assignment. They waited for a time. They were then told by the manager that Mr Tschannen did not consent to the assignment. 213 Mr Dumbleton and his wife applied to the Tribunal. On 5 March 2001, the Tribunal made a finding that Blackington had unreasonably withheld consent and made an order that the form of assignment be executed by 10am on 6 March 2001. The sale was settled. 214 Mr Tschannen did not dispute this course of events. After the Tribunal order, Mr Tschannen wrote to Mr and Mrs Jackson, asserting that having a dog was in breach of the park rules. It is not suggested, however, that this consideration had actuated Mr Tschannen's refusal to consent to the assignment and that refusal of consent on that ground was reasonable. Plainly, that was not the reason for withholding consent. The reason was an intractable policy never to consent.
Tacke to Wadley 215 On 10 February 2001, Mr Tacke went with Mr Wadley to the office and lodged the customary form of assignment. A few days later the form was returned to him unsigned. Accordingly, he lodged an application in the Tribunal. On 2 March 2001, the Tribunal found that Blackington had unreasonably withheld consent and ordered that the form of consent to the assignment be executed by 5pm on 2 March 2001. 216 Again, a question arises about the jurisdiction of the Tribunal and the form of the order that was made. Again, however, Mr Tschannen did not dispute this account of events. Again, no reason was advanced for refusing consent.
McKenzie to McGowan 217 On 6 February 2001, Mr McGowan lodged the customary form for consent to an assignment from Mr McKenzie. Having had no response, he lodged an application with the Tribunal. On 5 March 2001, the Tribunal found that the park owner had unreasonably withheld consent and ordered the park owner to assign the lease before 5pm on 9 March 2001. 218 Again, a question arises about the jurisdiction of the Tribunal and the form of the order that was made. Again, however, this account of events was not disputed by Mr Tschannen. 219 Mr Tschannen did say in his evidence that he was concerned about the possibility that advantage was being taken of Mr McKenzie, who was terminally ill and whose power of attorney was held by Ms McGowan. The assignment was to her son, Mr McGowan. It was not suggested, however, that any such concern was conveyed to Ms or Mr McGowan. I do not accept that this was the true reason for refusing consent or that it would have been a reasonable ground for refusing consent without further investigation.
Assignments generally 220 To his credit, Mr Tschannen did not dispute that his conduct in refusing consent in relation to the foregoing transactions and, indeed, the policy which he had at that time of never consenting to assignments irrespective of the circumstances was wrong and inexcusable. It has also to be said that the motivation for that policy having been adopted is equally apparent and inexcusable, namely, to obstruct the assignment of residential tenancy agreements as part of a program to make life difficult for owner-residents. When one has regard to Mr Tschannen's commercial objectives being served by owners leaving with their moveable homes rather than assigning, a serious view has to be taken of this course of conduct. 221 The defendants' conduct in this respect was in breach of an implied term. It was not a breach of the Residential Parks Act, and probably did not create a legal impediment to assignment. But the defendants' course of conduct gave residents to understand that they could not assign without the park owner's consent and, as a practical matter, residents were put to the choice of accepting the refusal or going to the Tribunal for relief as some did. 222 This course of conduct was unconscionable. A declaration of breach of the implied term in these instances is warranted. 223 Mr Tschannen was commendably repentant. He gave the following evidence: Q. It's your intention, isn't it, that you won't consent to any application to assign? A. The view that I currently hold is that I should and will consent to assignments in the future. I can't see that there is a negative impact on me or the park as a result of doing that.
Q. Has it taken these proceedings to bring you to that view? A. It has. 224 I am not satisfied that the policy was, as is suggested, conceived as a means of acquiring dwellings cheaply from residents. 225 I do not believe there is any serious prospect of repetition. No further relief is warranted.
Interference with sales of dwellings 226 Three instances are specified in Schedule A. The gravamen in each instance is a false statement that if a dwelling was sold it would have to be moved off the site. 227 I have dealt with that aspect of the Duncombe matter. 228 Concerning the sale from Northcote to Bishop, Ms Bishop negotiated a purchase from Mr and Mrs Northcote. At a meeting with Mr Freire on 5 October 2001, Mr Freire said that the dwelling would have to be moved to the relocatable section. Mr Freire, in his evidence, agreed that he said that. Ms Bishop was not willing to accede to that condition. Accordingly, application was made to the Tribunal. On 19 October 2001 the Tribunal made a finding that consent had been unreasonably withheld and ordered the park owners to consent to the assignment. 229 Blackington appealed to the Supreme Court. By November 2001, it was all too much for Ms Bishop. Having moved into the dwelling on 20 October 2001, she abandoned the transaction and moved out on 3 November 2001. So the Northcotes lost the sale as a result of the insistence that the dwelling be moved to the relocatable section, a requirement which the defendants had no legal right to impose. 230 In his evidence, Mr Tschannen asserted that there were good grounds for refusing to consent to the assignment, namely, that the Northcotes had ceased to be permanent residents. That was disputed but it is not a material issue. The plaintiff does not rely on this transaction as an instance of unreasonable refusal of consent to an assignment. Mr Tschannen agreed that he had instructed Mr Freire to say that, if sold, the dwelling would have to be relocated. That is the gravamen of this aspect of the case. It is, accordingly, common ground that Mr Tschannen was complicit in the wrongful imposition of a condition on the sale of the dwelling in this instance. 231 Concerning the sale Fredson to Nykfist, Mr Fredson gave evidence of a meeting with Mr Tschannen on 24 May 2002. According to Mr Fredson, he told Mr Tschannen that Ms Linda Tschannen had told Ms Nykfist that she would have to remove the dwelling from the park if she bought it. Mr Tschannen said that his sister could have perhaps expressed herself better. However, Mr Tschannen, in his evidence, did not suggest that he had disabused Mr Fredson of the understanding that, if the sale went through, the dwelling would have to be removed. 232 Mr Fredson applied to the Tribunal in May 2002 but, in late May or early June 2002, Ms Nykfist advised that she was not going ahead with the purchase. 233 The account of this transaction is consistent with what occurred in relation to the Duncombe and Northcote matters. However, the account of what was said by Ms Linda Tschannen is second hand and complicity in that or endorsement of it on the part of Mr Tschannen is problematical. Nor is it clear that Ms Nykfist discontinued the sale because of the requirement that the dwelling be removed. That would, of course, have been a sufficient reason for doing so but there are other possibilities and the actual reason is not known. 234 I do not regard the evidence in relation to this transaction as sufficient to contribute to the plaintiff's case. 235 Although not particularised as instances directly relied upon as interference with sales, Ms Knight and Mr Luback each gave evidence that they were told by Linda Tschanenn that their respective dwellings would have to be removed from the site if sold. 236 The inference is inescapable that obstructing the sale of dwellings in this way was part of a campaign to make life difficult for residents. 237 Again, Mr Tschannen did not dispute that the foregoing conduct was wrongful and inexcusable. 238 I am confident that Mr Tschannen fully appreciates the wrongfulness of this course of conduct. I am concerned that Ms Tschannen was involved and that I have not heard from her. But I am confident that Mr Tschannen will ensure that there is no repetition of this conduct by himself or his employees, including his sister. Nonetheless, the course of conduct constituting breach of s82 was sufficiently grave to warrant a declaration of such breach. 239 On the other hand, although there is power to grant an injunction against repetition of such unconscionable conduct without apprehension of repetition, I see no occasion for doing so without some other reason being evident. It follows that there is no occasion for requiring an undertaking in this connection in lieu of an injunction.
Rent receipts (paragraphs 1(d), 9 and 10) 240 This section of the judgment deals with paragraphs 1(d), 9 and 10 of the summons.
242 In Schedule B to the summons in its final form, Alan Shepherd is again the only resident specified.
Plaintiff's outline 243 The following is an extract from the plaintiff's "Outline" document. Restraining and mandatory orders arising out of various sections of the RP Act (orders …..9) · The orders sought here relate to:- …… ….. breaches of ss 48 of the Act. · Again, the declarations sought elsewhere in the Amended Summons are the jurisdictional basis for the injunctive relief. Plaintiff's contentions of fact 244 The following is an extract from the plaintiff's "Contentions of Fact" document. Rent Receipts · There were convictions in the Local Court for matters to do with rent receipts. There was much evidence dealing with rent receipts, as follows:· • Mr Flanagan, rent receipts which did not reflect a Tribunal order;· • Mrs Hill; rent receipts which did not reflect a Tribunal order· • Mr Hogg, rent receipts which did not reflect a Tribunal order;· • Mr Jackson, rental receipts for a long period in the name of Dumbleton;· • Mr McGowan, rental receipts for a period in the name of McKenzie· • Mr Kelly, rental receipts which did not reflect a Tribunal order;· • Mrs Knight, rental receipts which did not reflect a Tribunal order;· • Mr McGowan, rental receipts in the name of McKenzie;· • Mr Shepherd, rental receipts which did not include the details prescribed by the Act;· • Mr Skennar, rental receipts which did not reflect a Tribunal order;· • Mr Tacke, rental receipts which did not reflect a Tribunal order;· • Mr Wadley, rental receipts in the name of Tacke. · As a result of the former problems with rent receipts, many residents currently pay their rent into the trust account of the Consumer, Trader and Tenancy Tribunal "until further order of the Tribunal" · The situation relating to difficulties with rent receipts has now been cleared up - partially due to the signal influence of these proceedings on Mr Tschannen's mind - and there is only one residents for whom rent receipts is a continuing issue. Orders sought as to Rent matters · The evidence led by the plaintiff establishes grounds for declarations sought in paragraphs 1(d) and (e) of the Amended Summons (with reference to the folio numbers of schedule A to the Summons) (these being matters in relation to which the second defendant was convicted):- 23, 25, 26 and 27 - failure to issue rent receipt complying with the Act to Mr Shepherd 28 - failure to comply with order of Tribunal in relation to Mr Kelly 29 - failure to comply with order of Tribunal in relation to Mrs McGowan 31- failure to comply with order of Tribunal in relation to Mr Skennar 34 - failure to comply with order of Tribunal in relation to Mrs Knight 35 - failure to comply with order of Tribunal in relation to Mr Tacke 36 - failure to comply with order of Tribunal in relation to Mr Flanagan · Paragraph 9 of the Amended Summons seeks orders relating to rent receipts. It is acknowledged that except for Mr Shepherd, the ongoing issues have been cleared up and orders 9(c) and (d) are rendered unnecessary. Given the past conduct of the defendants, it is not unreasonable to make orders 9(a) and (b). Mr Shepherd is willing to abide by the decision of an independent accountant, appointed at the expense of the second defendant, to ascertain the quantum of rent for the disputed period.
Plaintiff's further submissions and contentions 245 The following is an extract from the plaintiff's document "Further submissions and contentions". Convictions for failing to provide proper rent receipts: · Frederick Newnham (216) x 2 (failed to show whether in debit or credit and by what amount 26/2/2002, 22/4/2001); · Alan Shepherd (115) x 3 (did not include period for which rent is paid 18/3/2001, 25/3/2001, 16/4/2001).
Undertakings proffered by the defendant 246 The following undertaking was proffered by the defendants, unconditionally and without admissions, on the same basis as in the case of paragraphs 6 and 7 of the summons. The defendants and each of them undertake to the Court that they will not wilfully breach, or cause to be breached, section 48 of the Residential Parks Act.
Defendants' outline 247 The following is an extract from the defendants' "Outline" document. Paragraphs 9 and 10
· The only two matters of present complaint are Shepherd and Hogg.
· Mr Hogg concedes that his receipts state the correct rental position. His only problem for some time has been that his receipts failed to record a credit of $50.00, an error which he does not suggest that he drew to the attention of the Park staff.
· As to Mr Shepherd, it is clear that the defendants have endeavoured in a genuine way to sort out the status of Mr Shepherd's rent: see ex 7, the defendants' letter to Mr Shepherd dated 17 July 2003. Although he has had the defendants' calculation for over two months, Mr Shepherd says that he is still working on his own calculation.
· In the absence of explanation from Mr Shepherd as to why the defendants' calculation is wrong, this Court should not assume, it is submitted, that there is any existing problem with Mr Shepherd's rent receipts. Further, the plaintiff's contentions assume that the defendants have failed to act bona fide in relation to rent receipts. No cross examination on this topic was directed to the first defendant.
Evidence and findings 248 Breaches of s48 are incontrovertible in view of the convictions referred to in the "Contentions of fact" document. However, as indicated by the particulars referred to above, the only outstanding rent receipt matter is the case of Mr Shepherd. He says he has been overcharged. The defendants say he has not. 249 Mr Shepherd has a favourable ruling from the Tribunal, against which Blackington has appealed. There is no stay of the Tribunal's order and there has been no action to enforce the order due, I would assume, to a tacit agreement not to incur costs unnecessarily. Mr Shepherd and Blackington have agreed, at my suggestion, to abide by the certificate of an accountant, to be mutually appointed and to be paid by Blackington. So, effectively, there is no live issue about rent receipts. 250 In the plaintiff's "Contentions of fact" document it is acknowledged that orders 9(c) and (d) are no longer necessary but that "given the past conduct of the defendants it is not unreasonable to make orders 9(a) and (b)". 251 As against that, the law has run its course in relation to breaches of s48. Convictions have been obtained and there is no outstanding rent receipt matter now that the Shepherd case is effectively resolved. 252 In these circumstances, there is no occasion for the declarations and orders claimed in paragraphs 1, 9 and 10 of the summons, or for the proffered undertaking.
Contravention of rent orders (paragraph 1(e)) 253 This section of the judgment deals with paragraph 1(e) of the summons.
Plaintiff's further submissions and contentions 255 The following is an extract from the plaintiff's document "Further submissions and contentions".
Convictions · The following is a list of the convictions and the relevant residents. · Convictions for failures to comply with rent orders: · Raymond Skennar (site 92); · Harold Harrup (224); · Frederick Newnham (216); · Gerhard Tacke (61); · Vincent Flanagan (205); · Maria & Leonard Hogg (240); · Bruce McKenzie (26); · Margaret Knight (236); · Clifford Kelly (221); · Grace McGowan (25).
Evidence and findings 256 In the six instances specified in Schedule A, Blackington was convicted of breach of s61. 257 As in the case of breaches of s48, the law has run its course. There is no occasion for a declaration as claimed or for any further order or undertaking.
Appointment of manager in place of first defendant (paragraphs 4 and 5) 258 This section of the judgment deals with paragraph 4 and 5 of the summons.
It is intended that the Manager have the following powers relating to Banora Point Caravan Park (also known as Banora Point Tourist Caravan Park and/or Banora Point Residential Park) located at 2 Pacific Highway, Banora Point ("the Park"):- (a) the powers set out in sub-s 143(1) of the Residential Parks Act ; (b) the power to operate a bank account in the name of "Banora Point Caravan Park Manager Appointed" into which account rentals are paid and out of which the day-to-day running expenses (including the cost of the services of the park manager) of the park may be paid, and a buffer for emergencies may be retained, the amount of such buffer to be at the discretion of the manager. (i) if the rentals are sufficient for the day-to-day running expenses of the park, then any moneys in excess of requirements to be remitted to the first defendant or to his nominee on a weekly basis; (ii) if the rentals are not sufficient for the payment of the day-to-day running expenses of the park, then the manager may request the first, second or third defendants to pay those expenses. (c) The Manager will have the power to undertake, by himself or by delegation, without direction from the first defendant unless the Manager in his discretion deems it appropriate to seek such direction, the following matters, being matters which involve the day-to-day running of the Park:- (i) Determine the rent payable for sites (permanent and casual). (ii) Decide who may, and who may not, become a resident or tenant in the Park. (iii) Prepare offer and execute residential site agreements and residential tenancy agreements. (iv) Determine the composition of tenancies within the Park and to this end make determinations as to the number of short term, long term, casual and holiday lettings. (v) Determine when Notices of Termination are to be served. (vi) Commence CTTT proceedings in the name of the Defendants (with the agreement of the first defendant and on the advice of any solicitor acting for any of the defendants that such proceedings have a reasonable prospect of success) (vii) Defend CTTT proceedings in the name of the Defendants, if a solicitor acting for anyof the defendants advises that the defence of those proceedings is reasonably maintainable.. (viii) Compromise CTTT proceedings commenced against, or in the names of, the defendants. (ix) Determine when to execute warrants of possession. (x) Consent, or object to proposed assignments of leases. (xi) Make offers to outgoing permanent residents for the purchase of their vans, with the consent of the first defendant. (xii) Negotiate with residents and tenants about the relinquishment of their rights to permanent sites, and determine the compensation that should be paid to the outgoing tenant with the consent of the first defendant.. (xiii) Determine in what circumstances to enforce Park rules. (xiv) Arrange for relocation of resident to other parks and negotiate compensation. (xv) Maintain the liaison committee. (xvi) Manage and supervise the Park, including the employment or dismissal of employees of the Park. (d) The Manager must consult with, and take into account the views of, the first defendant where any decision falls to be made which may involve:- (i) the long-term future of the Park; (ii) the expenditure of sums over $500.00; or (ii) expenditure on matters of infrastructure or of a capital nature. To this end it is noted that the first defendant does not intend to accept new tenants under residential site agreements and the Park Manager may not accept any new residential site agreements without the express permission of the First Defendant. (e) In the event of any dispute between the Manager and the first defendant as to matters upon which the Manager must, or chooses to, consult with the first defendant, then the parties are to attempt to resolve the dispute by way of mediation with a mediator agreed upon by the parties or, in the failure of the parties to agree, by a mediator appointed by the Chief Executive Officer of the Real Estate Institute to appoint a person as mediator and the decision of the mediator will be binding upon the manager and the first defendant.
1A. It is proposed that the Manager appointed pursuant to order 5 of the Amended Summons be employed:- (a) by the second and third defendants; and (b) owe duties to the second and third defendants as an employee; but with the overriding duty to manage the Park in accordance with the Residential Parks Act .
It is intended that the Manager be appointed for a period of two years to manage the Park.
The period of management shall cease prior to the expiration of two years if:- (a) the Park is sold as a going concern in an arms-length transaction to an entity not involved with or controlled by the first defendant or any person involved with the second and third defendants; or (b) the plaintiff consents to the cessation of management.
Should the Manager retire or otherwise not complete the period of two years as manager, the plaintiff, in consultation with the first defendant, may appoint a replacement manager if the period of two years has not yet expired at the time of the retirement of the Manager.
The Manager shall provide reports and accounts of the Park to the plaintiff and to the first defendant on a monthly basis.
Plaintiff's outline 260 The following is an extract from the plaintiff's "Outline" document.
Orders relating to management of the Park (orders 4 and 5)
· The legislative basis for the orders lies in s 65 and 66 of the FT Act. The Court may make these orders if it is satisfied that the defendants have breached ss 42 and 43 of the Fair Trading Act (in which case an injunction under s 65 of the FT Act may lie) or any of the provisions of the Residential Parks Act (in which case an injunction under s 66 may lie). The Contentions of Fact deal with the conduct which it is alleged was misleading and deceptive, or unconscionable. · The orders reflect the wording of s 65(2), and seek to restrict the first defendant from having personal management of the Park (order 4) and direct the defendants to employ, instead, an independent manager (order 5) as the specified terms and conditions of continuing to do business. · This case, of course, differs from the usual restraint of conduct cases, in that the public interest is not served in restraining the defendants from carrying on business at all. There are approximately 500 people residing at the Park, many of whom have been there for a considerable period of time, and others who are not in any position to find alternative accommodation. · The plaintiff has served upon the defendants proposed powers to be exercised by the manager appointed for the Park which would, it is submitted, deal with the past and, in some cases, continuing problems at the Park and enable the staff at the Park to be directed in a way which would ensure that the RP Act, and general requirements of fairness, is complied with in future. The Summons seeks that the first defendant propose a manager acceptable to him rather than imposing a manager of the plaintiff's choice upon the defendants. Plaintiff's contentions of facts 261 The following is an extract from the plaintiff's "Contentions of Fact" document. Factors going to the orders 4 and 5 in the Amended Summons · A number of incidents are relied upon by the plaintiff to ground the application that the first defendant be restrained from personal involvement in the Park. They arise out of poor management, an unduly personal approach to the conflict within the Park, and the instruction of staff to take harassing and aggressive action against residents forming the "gang of 12" or the "residents who take the Park to the Tribunal". · Mrs Burkitt gave evidence that her car had been driven into by Mr Tschannen while security guards were installing bollards in front of her site. Mrs McGowan gave evidence that, despite a Tribunal decision that she was not breaching her agreement by parking on the road outside her site, bollards were installed to prevent her parking there. A photograph of Mrs McGowan's car parked in her usual location shows that there is sufficient room for another car to pass. · Mr Hogg, Mr Jackson and Mr Shepherd gave evidence that large skips had been placed outside their residences, when for a long period of time they had been centrally located. Each of the three families lives on the riverfront and the bins interrupt their view and interfere with the amenity of the area. Mr Tschannen denied that the placement of the bins was part of any campaign to make life difficult for these residents, but it can be inferred that their placement, and the slowness with which they are emptied, are explicable by the identities of the residents who have to deal with them. Mr Shepherd claims that the bin in front of his house was moved by order of the Tribunal "from its current position", yet was moved so as to be equidistant to his house from the old position. · There was significant evidence, both on Mr Tschannen's account in cross-examination and in affidavit evidence by the residents, of poor management practices. For example, Mr Iden paid a bond in July 1998 which was not forwarded to the Department of Fair Trading until 18 August 2000. The evidence revealed a number of sub-standard management practices on the part of Mr Tschannen, an overview of which is as follows:-· • Mr Tschannen appeared to wish to sidestep responsibility for the second and third defendants' actions by claiming not to be involved. He gave evidence that he did not receive documents, was not aware of issues, and even had not read Tribunal judgments. He said he had not seen a security report which had the words "tell Warren" in it. His staff assaulted residents (Mr Freire/Mr Shepherd) or routinely misrepresented important provisions of the Act and he was, apparently, no aware of it. • the issuing of rent receipts in names other than to the persons to whom the Tribunal had ordered an agreement be assigned, causing at least one resident (Mr McGowan) to be inconvenienced with rent assistance. Mr Tschannen refers to another case (that of Mr Jackson) as a "mistake"· • failure to comply with payment of Tribunal orders for monetary compensation. The explanations of Mr Tschannen that he did not have addresses for some persons who had the benefit of Tribunal orders (such as Mr Field and Ms Davies) or "he just didn't have the money" are not convincing, and even if true, do not indicate sound management practices.· • the use of the Village News as a weapon in the ongoing campaign against the "gang of 12" or the residents who regularly take the Park to the Tribunal - this consists of warnings not to be involved in a Resident Action Group convened by some of those residents, the publication of details of Tribunal hearings, and the quoting of the views of "some residents" in a way which would lead the reader to assume that the Management shared those views. For instance, the contention that "some residents" felt that anyone who objected to the provision of driver's licence and registration information "must have something to hide". or that "some residents see them as bludgers". The Village News of 21 November, 1997 (a year or so after Mr Tschannen purchased the Park) is in particularly vituperative terms, and includes a statement that Mr Tschannen was "willing to spend $50,000 because I do not agree with a Tribunal Member's order and at the end of the day we are fighting about … (small amounts of money). I object to residents bringing applications to the Tribunal in an attempt to get costs and orders for compensation … ". This is a clear case of misuse of a power imbalance, so as to make residents feel intimidated and concerned. • the admission in the witness box that many matters which were issues in these proceedings were fixed up because of no other factor than the bringing of these proceedings. Such an approach does not lead to great optimism that any inherently defective management practices are being properly addressed. • Other restorative matters appear to have been commenced after the commencement of these proceedings - for example, the engagement of a "facilitator" to co-ordinate services within the Park (see third affidavit of Mr Tschannen). · In cross-examination, Mr Tschannen agreed that he had appealed from proceedings where he did not agree with the order of a Tribunal member where there was little financial reason to do so. He said that he would no longer do so where there was no substantial monetary impact, but the likelihood of his maintaining this position must be viewed against his evidence that he had not withdrawn the appeal against Mr Shepherd's appeal over $550.00, even though Mr Justice Dunford had indicated in a directions hearing during which he gave formal reasons that his Honour viewed the appeal as of such slight importance that the Park should pay the costs of both parties, notwithstanding the result. · Mr Tschannen says he views the Tribunal as being biased, and has complained to the Tribunal Chair about members as well as to Judicial commission. There is no indication that the level of compliance by the defendants with Tribunal orders will improve. Mr Tschannen did not give evidence before the Local Court, but sought in this Court to provide factual accounts of events in exoneration of the second defendant in relation to the convictions. Mr Tschannen's attempts in his affidavit to explain how Mr Reimer, the Local Court Magistrate, got it wrong indicates that, despite his denials in the witness box, he does not particularly hold the Local Court in high regard either. · The defendants proposed undertakings to be given in settlement of these proceedings. The undertakings do not, in any real way, meet the concerns of the Office. They are insufficient for solution of the problems in the Park in the following ways-· • they do not admit of any wrongdoing in the past on the part of any of the defendants;· • they do no more, and in some cases do less, than what is required of the Park Management under the Act. For instance, the undertakings not to breach the Residential Parks Act in future are limited to "wilful" breaches. No such requirement is included in the Act.· • The offers to move residents is what is required in the Act, and the only additional factor is that the offer applies on the election of the resident. Mr Tschannen would have to do more than what is offered if any of the "triggers" for compensation operated. · On 30 April and 1 May, 2002, Environmental Health officers of the Tweed Shire Council, the local government authority for the Park, inspected the Park in response to complaints from residents. Mr Wheatley was one of the officers who inspected the Park. He gave evidence that the Park breached a number of Local Government Act provisions, and required a number of works to be undertaken for continuance of the "Approval to Operate" to the Park issued by the Council's Environment and Health Services Unit. The report identified issues such as the provision of toilet facilities, visitor parking spaces, and the use of caravans for which sites were not approved. · The caravans were originally placed upon Crown land within the Park and there were complaints by the residents about the lack of proper sewage and water connections, resulting in sullage flowing into the wetlands. These were moved onto a paved road within the Park days before a Council inspection and remain there, occupied, although not being approved for that purpose. They block one of the main parts of the "ring road" around the Park. · The caravans comprise both a loss of amenity for the residents, and a breach of the Local Government Act. Mr Tschannen has criticised a number of residents for parking partly on the road and partly on their own sites, yet has blocked a major part of the access to the Park by his use of unapproved and unsewered caravans. · There have been breaches of quiet enjoyment (as found by the Tribunal and as listed in Schedule A to the Amended Summons), and in matters such as removal of the fence behind the Hoggs in breach of the Park Rules current at the time. Mrs McGowan is entitled to sole occupancy of her ensuite (see Council report annexed to affidavit of Mr Wheatley) but the defendant acknowledges it changed the locks to give another site access to her ensuite. · For these reasons, and for the long and continued breaches of the Residential Parks Act which have been proven by the plaintiff, Mr Tschannen is not suitable to act as manager of the Banora Point Caravan Park. · The plaintiff seeks both order 4 (orders restraining Mr Tschannen from personal involvement in the Park) and order 5 (appointment of an independent manager) with the powers and duties as set out in the Amended Managers' Powers tendered to the Court. It is considered that Mr Tschannen should have input to decisions such as those he had during the time Mr Freire was Operations Manager - that is, approval of expenditure, bookkeeping, and the like, in order to reflect his interest in the Park. The intent of the imposition of the manager between the first defendant and the management of the Park is to impose a "top-down" approach of compliance with statutory responsibilities which have not been demonstrated in the past. Many important issues have been cleared up as a result of the bringing of this litigation; however, it is not sufficient to show that the first defendant now intends to comply with the Act in the future. 262 The following is an extract from the plaintiff's document "Further submissions and contentions".
Submissions as to Mandatory Injunction for appointment of a manager. · The order seeking appointment of a manager is in effect a "last resort". The defendants have been the subject of significant and continued litigation for quite some time at the instigation of the residents, most of which litigation has been unsuccessful on the part of the defendants. The Department has successfully prosecuted the second defendant on important matters arising out of its management of the Park. It is really only since the instigation of these proceedings that the defendants have made any substantial attempt to rectify long-standing problems and fix up difficulties in the administration of the Park. Notwithstanding this, it is clear that the first defendant has not changed his attitudes, merely his acceptance of advice that things had to change. · The plaintiff does not seek, in the first instance, to enforce a manager of its choice on the defendants, but merely to be able to approve the plaintiff's choice. This avoids the imposition on the first defendant of employing a person of whom he does not approve. The learned authors of Spry, Equitable Remedies, 6th edition at p 545, note that the Court may, in making a mandatory order, make clear that it is the "change in the material circumstances … rather than the manner in which that change occurs (Kennard v. Cory Brothers & Co Ltd , [1922] 2 Ch 1)." The authors go on to say:- "So it may, according to the circumstances, be appropriate to direct the defendant to take such steps as are necessary to bring about a particular position ( Kennard ). However, the particularity by which the order of the court is expressed may be influenced by the attitude of the defendant". The Court may ensure that compliance is able to be clarified by the reservation of leave to apply. · The rule against "injunctions in aid of contracts of personal service" is one derived from the unsuitability of contracts of employment for specific performance. It is submitted that this case is not within the rule that equity will not force a contractual personal relationship upon unwilling participants. The cases in which that rule is stated are those where particular employment relationships are sought to be enforced - for example, that a particular builder be ordered to complete a building, or that an employer re-employ a particular person sacked unfairly. In CH Giles & Co v. Morris [1972] 1 WLR 307 at 318-9, Megarry J said:- "But I do not think that it should be assumed that as soon as any element of personal service or continuous services can be discerned in a contract the court will, without more, refuse specific performance. Of course, a requirement for the continuous performance of services has the disadvantage that repeated breaches may engender repeated applications to the court for enforcement. But so may many injunctions, and the prospects of repetition, although an important consideration, ought not to be allowed to negative a right. As is so often the case in equity, the matter is one of balance of advantage and disadvantage in relation to the particular obligations in question, and the fact that the balance will usually lie on one side does not turn this probability into a rule". · On proper analysis, an order to remove oneself from personal management and to impose a third person as an insulating layer between the first defendant and the residents of the Park is not an order akin to specific performance of a contract for personal services, but a means of ensuring that the restraining order sought in order 4 of the Amended Summons is not used as a further weapon against the residents of the Park by removing all management services from them. The policy reason for the rule against injunctions enforcing personal services is the "undesirability, as a matter of policy, that unwilling persons should, despite their opposition, be obliged to maintain confidential and intimate relationships" (Spry, p 123). · If it is considered that the rule should ordinarily apply to an appointment of a manager by the defendants in conjunction with a restraining order, the "exceptional circumstances" exception should be brought into play for the reasons above stated. The fact that these proceedings are brought by the Commissioner is a factor which should be considered as an additional circumstance.
General Submissions on Injunctive Relief. · The Court has indicated that there is some concern about the effectiveness of the orders if the defendants are able to transfer the assets of the park to another company or set up another company to operate the park. Should the Court see fit to make an order appointing a manager, it may be appropriate to make the following orders:- · An order that the assets, operations and undertakings or any of them of the park not be assigned, sold, exchanged or transferred to or encumbered by any related entity. ('Related entity' having the same meaning as in the Corporations Law). · An order that the defendants give not less than 60 days notice in writing to the plaintiff of any arrangement for the assets, operations or undertakings or any of them of the park to be assigned, sold, exchanged or transferred to or encumbered by any person. · Residential parks are not regulated through a licensing regime. Therefore, the pinnacle of regulatory action is to seek injunctive relief through the Fair Trading Act. The plaintiff has taken this course due to the lack of compliance with Tribunal orders and the limited value of prosecution action. · Injunctive relief is the final course of action available to the plaintiff and provides for an appropriate means of regulatory intervention to secure future compliance by the defendant. · The power of the Court to grant injunctions whether or not the Court is satisfied that the person has engaged in the conduct in the past or is proposing to continue the conduct recognises the place of injunctive relief under the Fair Trading Act as a means of regulatory intervention. The injunctive relief available provides the regulator with a means of securing future compliance and provides for severe consequences should there be non-compliance with the orders of the Court.
Defendants' outline 263 The following is an extract from the defendants' "Outline" document.
· These paragraphs raise what is probably the most contentious issue in these proceedings: the proposed appointment of a manager.
· As is now apparent from the evidence, the defendants have no problem with the tenants, who occupy the great majority of sites in the Park. Further, the majority of owners have sworn no affidavit, and those who have, in most cases, depose to matters which are either inconsequential or matters of history (often, disputed history).
· The defendants make two main attacks on these paragraphs. One is that, for a variety of reasons, the orders sought are impractical, or unworkable. However, there is a more fundamental objection: ie that the proposed orders misconceive the basis upon which the Court will take powers of management of a business out of a person's hands.
· The plaintiff's letter of 10 September 2003 (ex 1, page 18-19) contends that the orders sought " do not differ in any meaningful way from other forms of involuntary management, such as a receiver and manager".
· This proposition is manifestly incorrect. A receiver and manager appointed by the Court is an agent of the Court. His remuneration is fixed by the Court. His appointment is for a specific purpose: see the attached extract from O'Donovan on Receivers. Here, the plaintiff puts forward no sound reason why a manager should be appointed, and does not describe the purpose which the appointment is supposed to fulfil.
· Further, as the attached extract makes clear, the appointment of a receiver and manager will be for a limited duration. Here, the plaintiff seeks a two year appointment, although it does not explain why the two year period is required.
· On the issue of impracticability, the defendants say:
· The summons seeks the appointment of a person or corporation who is the holder of a Strata Managing Agent licence. No evidence has been advanced to show that the holder of such a licence has any qualifications relevant to the running of a residential park. · As has become obvious in the course of these proceedings, the plaintiff itself has been utterly unable to put forward a candidate for the position, and has called no evidence to explain why it has been unable. It has called no evidence about why Mr Grove was withdrawn. The logical inference (in the light of the correspondence about his duties, the fact that he was required for cross examination, and the concession that a further affidavit to be sworn by him was in the course of preparation) is that his unsuitability was recognised, either by himself or by the plaintiff. · The plaintiff has made numerous attempts to formulate the powers of the manager, culminating in the amended statement of manager's powers it now relies upon. · The following comments are made about that document: · Paragraph 1 (b)(i) provides that in the event of a shortfall, "the manager may request the first, second or third defendants to pay [the Park's] … expenses". The document is silent upon the consequences of the defendants declining to make the payment. In any event, the extent to which the first defendant underwrites the park is surely a matter for him. The court cannot impose upon him an obligation to lend money to the second or third defendants. · As to paragraph (c), many criticisms can be made of the proposed powers. The evidence discloses that there has been no problem of any consequence so far as the tenants (as opposed to the owners) are concerned. Why, then, should be the manager be involved in determining the rent for tenants (sub-paragraph (i)), deciding who may be a tenant (sub-paragraph (ii)), executing residential tenancy agreements (sub-paragraph (iii)), determine the composition of tenancies (sub-paragraph (iv)) and so on? Why should the manager seek the advice of a solicitor about the commencement of or the defending of proceedings: sub-paragraphs (vi) and (vii)? · Paragraph (d) provides that the manager is to "consult with, and take into account, the views of the first defendant" in regard to the long term future of the Park, or expenditure of sums over $500. What obligation does this impose upon the manager? What does it mean? · Paragraph (e) is fatally flawed. Not only is it impracticable to provide for the mediation of every dispute which may arise - and they may arise frequently - the proposal confuses the role of a mediator and a referee. How can a mediator make a decision which is binding? The role of a mediator is to facilitate a settlement, not to impose a decision upon the parties. That is the role of a referee or arbitrator. And, in any event, by reference to what legal criteria does the mediator, or referee, or arbitrator, make a determination? Does he, ultimately, do any more than impose his personal opinion upon the parties? · As to paragraph 1A, how can a manager's rights under the proposed appointment be reconciled with the proposition that he owes the second defendant and third defendant duties as an employee? What employee has the right to decline to accept his employer's direction? Evidence and findings 264 It is the plaintiff's perception that if Order 4 were made without Order 5, the consequence would be that the park would be closed, to the detriment of residents. Order 4 is, accordingly, not sought without Order 5. 265 Mr Tschannen, who is the alter ego of the defendant corporations which own and control the park, and fulfils the role of general manager of the enterprise. The gist of the arrangement proposed is that he would cease to have authority in the conduct of the business. He would be replaced as manager by his approved nominee or, failing approval by the plaintiff of his nominee, by the plaintiff's nominee. 266 The new manager would be engaged on the terms specified. 267 Under the proposed terms, the new manager would be employed by the incorporated defendants and owe duties to them as an employee, but would not be amenable to direction by Mr Tschannen. The companies could, however, with Mr Tschannen's complicity, appoint some other person with authority to give directions to the manager pursuant to the contract of employment with them. 268 The manager would be bound to take account of Mr Tschannen's views when a decision might involve the long-term future of the park, expenditure over $500 or expenditure on infrastructure or of a capital nature. There is the prospect of uncertainty as to whether a particular decision would be covered by this rubric. 269 The manager may consult Mr Tschannen on other matters. 270 In the event of a dispute between the manager and Mr Tschannen, the matter would go to mediation and, if necessary, would be decided by the mediator (in effect, as an arbitrator). But what of a difference of opinion between the manager and a person appointed by the companies to exercise the companies' rights under the contract of employment, and what of a dispute between the mediator and that person? 271 The end result would be appointment of a manager, with control over the assets and business of the corporate defendants, who would not be amenable to direction by their alter ego, but who might be amenable to direction by some other person appointed by the companies for the purpose. In the event of a dispute in the class of instances mentioned, authority would pass to a person appointed as mediator, who is not amenable to direction by the owners or by anyone, and whose decision might be in conflict with directions given by some other person appointed by the companies to exercise the companies' role as employer. 272 It was suggested that the manager's role is analogous to that of a manager under the Corporations Act 2001. It is not. 273 No provision is made for funding the running expenses of the park if rental income is inadequate at any time. The manager may request funds from the defendants but there is no obligation to fund. Nor should there be. What are the manager's responsibilities in that event? 274 The legal incidences of the relationship between the manager and the companies - including responsibilities and potential liabilities - are uncharted and uncertain. 275 The proposed arrangement is so novel and so uncertain as to its legal implications that I see no reasonable prospect that anyone would accept the appointment. It is known that, prior to the hearing and during the hearing, the plaintiff attempted to find a candidate to proffer for appointment and failed. That is no surprise. It confirms my expectation. 276 The proposal is unacceptable and impracticable. 277 Nor am I satisfied that any such orders are warranted. Mr Tschannen has, I believe, turned over a new leaf. I refer to the following passages in Mr Tschannen's evidence. Q. You have in the past effectively accused various residents, particularly Messrs Shepherd and Hogg, of playing games with you? A I can't recall that I've actually said that.
Q. But you take the view that the tribunal applications by them are not, generally speaking, serious applications; they have been taken with a view to upsetting you or making your life difficult? A. I do accept that, yes.
Q. Is it the case a number of your actions have been in the same vein, is that right? A. I have to say yes.
Q. It's not necessarily a one-way street? A. I'd accept that, yes. [Tr 276]
Q. It was put to you on a number of occasions that there had been areas of noncompliance with tribunal orders and the like which have only been remedied after the commencement of these proceedings; do you recall those questions? A. Yes.
Q. Had you taken or was it your intention to take any steps to sorting out these compliance or noncompliance issues before the commencement of these proceedings? A. Some of them I put on the back-burner. The proceedings motivated me to really tidy up these things, to bring them forward. [Tr 293] 278 There is no currently unresolved problem in relation to the management of the park. In these circumstances, there is no warrant for such a scheme as has been proposed.
Compliance with Tribunal orders (paragraph 11) Summons 11. AN ORDER that the Defendants and each of them, their servants and agents comply with orders made by the Consumer Trader and Tenancy Tribunal and the Residential Tribunal, as listed in Schedules B and C to this Summons. [Schedules B & C are annexed.]
280 In Schedule C to the Summons in its final form one item only is specified, being - Applicants: A & S Shepherd
Order, 26/8/2002: Quiet enjoyment of premises - Blackington to pay applicant $700 compensation
Plaintiff's further submissions and contentions 281 The following is an extract from the plaintiff's document "Further submissions and contentions". · Convictions for failing to comply with Tribunal orders: · Bruce McKenzie (26) - consent to assignment to Garry McGowan 9/3/2001; · Barry & Lorraine Dumbleton (233) - consent to assignment to Jacksons 6/3/2001; · Gerhard Tacke (61) - consent to assignment to Wadley 2/3/2001; · Alan Shepherd (115) - proper rent receipt 23/2/2001. · The list was compiled by Michael Finch, an investigator in the employ of the plaintiff, with reference to the Murwillumbah Local Court files produced on subpoena in these proceedings.
Defendants' outline 282 The following is an extract from the defendants' "Outline" document.
Paragraph 11 There are no longer any outstanding orders of any importance. In any event, the orders stand in accordance with their terms. The CTTT Act provides penalties for not complying with Tribunal orders. Why should this Court go further? Evidence and findings 283 There were earlier matters. They are referred to in the written submissions. But the law has run its course in relation to them with convictions in the Local Court. 284 The item in Schedule B has been effectively resolved by the agreement to accept an accountant's certificate. 285 There appears to be a slip in Schedule C. On 26 August 2002, the Tribunal published orders limiting the rent payable by Mr and Ms Shepherd until a garbage skip was moved from opposite their site, and for refund of $14.70 overcharged for a letterbox. I believe that the order intended to be referred to is one made on 16 June 2003, being for $540 as compensation for breach of the statutory covenant for quiet enjoyment. There was delay in payment of that order. The order was registered in the Local Court and an application was made for a garnishee order. The order was paid before that went into effect. According to Mr Shepherd's uncontested evidence, another garnishee order had to be taken out in order to recover Mr Shepherd's costs of $148. The figure of $700 appears to have come mistakenly from a different order under which Mr Shepherd was ordered to pay $700 for damage to property when he drove over a garden bed. 286 There is now no unsatisfied order of the Tribunal except for Mr Shepherd's rent order mentioned in Schedule B, which is subject to appeal but is effectively resolved. 287 A case for relief has not been made in relation to this topic.
Compensation (paragraphs 16, 17 and 18) 288 This section of the judgment deals with paragraphs 16, 17 and 18 of the Further Amended Summons.
· No legal or factual basis for these orders is made out.
· The affidavit of Mrs Knight does not disclose that a single offer was made to her, passed on to the defendants, and rejected by them. It does not disclose one potential assignee rejected by the defendants. As has been pointed out by the defendants in correspondence, her affidavit contains a number of explanations why she cannot sell her home for the price she wishes, many of which could not, on any view, give rise to a legal liability on the part of the defendants: see page 3 of the bundle, between paragraphs 14 and 15. In any event, if Mrs Knight (which is not conceded) has a valid complaint, the proper measure of her damages is not the amount which she has been legally obliged to pay for rent. Paragraph 18
· The "residents who have left the Park since 1 January 2002" are not a class of whom it could be said that they all have claims for damages against the defendants, or claims of the same kind.
· There may even be such persons who are not deponents, and the proposed order is not limited to deponents. The deponents who have left the Park since 1 January 2002 seem to be Thelma Brown, Frederick George Fredson, Myrtle June Molloy, Hans Mistler, Brian Northcote and Iris Mary Winch.
· Mr Fredson's affidavit of 31 January 2003 discloses that he entered into an agreement by which he (and his wife) on the one hand and the park owner on the other gave up claims against the other: see annexure H to the affidavit.
· Mrs Molloy's affidavit of 23 May 2003 discloses that she when she put her home on the market, it was then inspected by one person who she did not regard as a genuine applicant: see paragraph 5 (which refers to an annexure to her earlier affidavit). She then negotiated a deal with Mr Tschannen: see paragraph 7. No prospective assignee was put forward by her.
· Mr Northcote's affidavit of 30 January 2003 discloses that, after a dispute with the defendants about a proposed assignment, he entered into a deed of settlement in which each party gave up all claims etc. against the others.
· Mrs Winch's affidavit of 24 February 2003 discloses that she sold her home for the same price as she paid for it, and left the park because of her declining health: see paragraph 8
· From this it is clear that the category of "residents who have left the Park since 1 January 2002" includes persons who have no claim at all, and persons who have entered into agreements by which they have formally compromised their claims against one or other of the defendants. For any claim for damages to succeed, these compromise agreements would have to be set aside. No basis for such orders is made out, and no such order could be made without those persons being parties to the proceedings. Plaintiff's response to defendants' submissions on strikeout application 290 The following is an extract from the plaintiff's "Response to Defendants' Submissions on Strikeout Application" document. Paragraphs 16 and 17 · The orders sought on behalf of Mrs Knight are based on a breach of s 44(k) of the Fair Trading Act which provides:- A person shall not, in trade or commerce, in connection with the supply or possible supply of goods or services ... :- ... (k) make a false or misleading representation concerning the existence ... of any ... right ..." · It is contended that Ms L. Tschannen, an employee of the second defendant and for whose acts the second defendant is vicariously liable, stated that Mrs Knight would not be able to transfer the lease and that any buyers would have to move the home from the site (see par 24 of Mrs Knight's affidavit, 30 January 2003). · Mrs Knight deposes that she is elderly, unwell and in a nursing home. The misrepresentation as to her rights caused her distress (par 25). She has had to reduce the price of her home, but has been unable to sell. · The Court has power under s 72(2) and (4) to order compensation be paid by the defendants for breaches of the Act. Each person seeking compensation has signed a consent (see the exhibit to the affidavit of Mr Finch) and the statutory bases of the orders are so satisfied. Paragraph 18 · The orders sought are, of necessity, limited to the persons who have given their consent for the Commissioner to take action on their behalf for compensation (see sub-ss 72(2), (4) of the Fair Trading Act). It is not a wide-ranging order in the sense proposed by the defendants. · The preponderance of evidence is that the inevitable approach of the defendants was:- to inform residents that no assignment of lease, or sale of the home on-site, was possible; to offer to purchase the relocatable home; if the resident took proceedings in the Tribunal, to defend such proceedings; and on a number of occasions, to appeal (in all cases unsuccessfully) to the Supreme Court. By the time the above processes had been completed, the residents had either sold their homes to the park owner, or their buyers had, not incomprehensibly, walked away from the purchase. It would be an incorrect approach for the Court to deal with each deponent as if they, individually, were presenting a case for compensation on their own behalf. The plaintiff is the Commissioner, not each of the individual deponents, and on ascertaining whether a person has "sustained ... loss or damage" by the conduct of the defendants the Court is entitled to have regard to the whole of the evidence and the whole of the conduct. Plaintiff's outline 291 The following is an extract from the plaintiff's "Outline" document.
Orders for compensation under s 72 of the FT Act (orders 16, 17 and 18).
· The orders sought on behalf of Mrs Knight are based on a breach of s 44(k) of the Fair Trading Act which provides:- "A person shall not, in trade or commerce, in connection with the supply or possible supply of goods or services ... (k) make a false or misleading representation concerning the existence ... of any ... right ..; (l) make a false or misleading representation concerning a person's rights or obligations under a residential tenancy agreement (within the meaning of the Residential Parks Act 1998) under which the residential premises consist of a residential site in a residential park …". · It is contended that Lynda Tschannen, an employee of the second defendant and for whose acts the second defendant is vicariously liable, stated that Mrs Knight would not be able to transfer the lease and that any buyers would have to move the home from the site (see par 24 of Mrs Knight's affidavit, 30 January 2003). · Mrs Knight deposes that she is elderly, unwell and currently living in a retirement village. The misrepresentation as to her rights caused her distress (par 25). She has had to reduce the price of her home, but has been unable to sell. · The Court has power under s 72(2) and (4) to order compensation be paid by the defendants for breaches of the Act. Each person seeking compensation has signed a consent (see the exhibit to the affidavit of Mr Finch) and the statutory bases of the orders are so satisfied. · The orders sought are, of necessity, limited to the persons who have given their consent for the Commissioner to take action on their behalf for compensation (see sub-ss 72(2), (4) of the Fair Trading Act). It is not a wide-ranging order in the sense proposed by the defendants. · The preponderance of evidence is that the inevitable approach of the defendants was:- • to inform residents that no assignment of lease, or sale of the home on-site, was possible; • to offer to purchase the relocatable home; • if the resident took proceedings in the Tribunal, to defend such proceedings; and • on a number of occasions, to appeal (in all cases unsuccessfully) to the Supreme Court. · By the time the above processes had been completed, the residents had either sold their homes to the park owner, or their buyers had, not incomprehensibly, walked away from the purchase. It would be an incorrect approach for the Court to deal with each deponent as if they, individually, were presenting a case for compensation on their own behalf. The plaintiff is the Commissioner, not each of the individual deponents, and on ascertaining whether a person has "sustained ... loss or damage" by the conduct of the defendants the Court is entitled to have regard to the whole of the evidence and the whole of the conduct.
Plaintiff's contentions of facts 292 The following is an extract from the plaintiff's "Contentions of Fact" document. Purchase of homes and vans by the park · Mr Tschannen made a number of offers to purchase vans or relocatables after sales had, to his knowledge, fallen through elsewhere and the sellers were more than merely willing to leave the Park. Mr Gehrig accepted an offer of $5,000 from the Park to sell their vans. Mrs Molloy was told by Mr Tschannen that he would not pay more than $5,000 after telling her that any buyers would have to "take it out of the park". Mr Freire gave evidence in cross-examination that that sum was the most Mr Tschannen was willing to pay for a van, even though the sellers invariably were asking more on the open market. The persons whose consents are annexed to the affidavit of Mr Freire are the persons on whose behalf compensation is sought for the circumstances of the sale of vans where no other buyers were available. · The plaintiff seeks orders that this matter be referred for external assessment to establish whether the sale of vans were at an under value, and if so, by how much. There is sufficient evidence to suggest that the sales occurred in a context of unequal bargaining power and acceptance of the standard $5,000 was as a last resort on the part of the vendors. Plaintiff's contentions of facts 293 The following is an extract from the plaintiff's "Contentions of Fact" document. Purchase of homes and vans by the park · Mr Tschannen made a number of offers to purchase vans or relocatables after sales had, to his knowledge, fallen through elsewhere and the sellers were more than merely willing to leave the Park. Mr Gehrig accepted an offer of $5,000 from the Park to sell their vans. Mrs Molloy was told by Mr Tschannen that he would not pay more than $5,000 after telling her that any buyers would have to "take it out of the park". Mr Freire gave evidence in cross-examination that that sum was the most Mr Tschannen was willing to pay for a van, even though the sellers invariably were asking more on the open market. The persons whose consents are annexed to the affidavit of Mr Freire are the persons on whose behalf compensation is sought for the circumstances of the sale of vans where no other buyers were available. · The plaintiff seeks orders that this matter be referred for external assessment to establish whether the sale of vans were at an under value, and if so, by how much. There is sufficient evidence to suggest that the sales occurred in a context of unequal bargaining power and acceptance of the standard $5,000 was as a last resort on the part of the vendors. Defendants' outline 294 The following is an extract from the defendants' "Outline" document. Paragraphs 16 and 17 The affidavit of Mrs Knight does not disclose that a single offer was made to her, passed on to the defendants, and rejected by them. It does not disclose one potential assignee rejected by the defendants. In any event, if Mrs Knight (which is not conceded) has a valid complaint, the proper measure of her damages is not the amount which she has been legally obliged to pay for rent. Paragraph 18
· The defendants rely upon their written submissions concerning the strike out application. Those submissions are repeated, with some modifications, as follows:
· The "residents who have left the Park since 1 January 2002" are not a class of whom it could be said that they all have claims for damages against the defendants, or claims of the same kind.
· There may even be such persons who are not deponents, and the proposed order is not limited to deponents. The deponents who have left the Park since 1 January 2002 seem to be Thelma Brown, Frederick George Fredson, Myrtle June Molloy, Hans Mistler, Brian Northcote and Iris Mary Winch.
· Mr Fredson's affidavit of 31 January 2003 discloses that he entered into an agreement by which he (and his wife) on the one hand and the park owner on the other gave up claims against the other: see annexure H to the affidavit.
· Mrs Molloy's affidavit of 23 May 2003 discloses that no prospective assignee was put forward by her, and she negotiated a deal with Mr Tschannen: see paragraph 7 of her affidavit.
· Mr Northcote's affidavit of 30 January 2003 discloses that, after a dispute with the defendants about a proposed assignment, he entered into a deed of settlement in which each party gave up all claims etc. against the others.
· Mrs Winch's affidavit of 24 February 2003 does not disclose any misconduct on the part of the defendants.
· From this it is clear that the category of "residents who have left the Park since 1 January 2002" includes persons who have no claim at all, and persons who have entered into agreements by which they have formally compromised their claims against one or other of the defendants. For any claim for damages to succeed, these compromise agreements would have to be set aside. No basis for such orders is made out, and no such order could be made without those persons being parties to the proceedings.
· It would be unusual for this Court to refer damages questions to "a licensed real estate agent", and, in any event, the ordinary principle is that a Court will not proceed to an assessment of damages (separately from the principal proceedings) unless satisfied that a loss has been sustained. The evidence does not lead to this conclusion. Evidence and findings 295 Ms Knight is elderly and unwell. She has moved to other accommodation. She has wanted to sell her dwelling and assign her tenancy agreement for some time. Her unchallenged evidence is that she was told by Ms Tschannen in June 2001 that a buyer would have to remove the dwelling. She says that she accordingly reduced her asking price. She has not found a buyer. 296 It is not known whether Ms Knight's initial or current asking prices have been realistic. 297 There is no evidence as to whether she has been informed by officers of the plaintiff that the restriction on sale conveyed to her by Ms Tschannen is without legal justification. I would assume she was so advised at the time she swore her affidavit in January 2003 and possibly at an earlier time. 298 It is not open to be found, in these circumstances, that Ms Knight has suffered financial loss as a result of the false statement made to her by Ms Tschannen. 299 As for other potential claimants, the plaintiff does not ask for other cases to be referred out for assessment of an established entitlement to compensation but for the purpose of ascertaining whether any other person has such an entitlement. The court is not the appropriate agency to direct and supervise such an investigation. 300 No basis has been established for any order as claimed in this section of the summons.
Orders 301 There will be declarations pursuant to paragraphs 184, 222 and 238 of this judgment. 302 Counsel should bring in short minutes of order, including as to costs by a date I will specify. 303 I will list the matter for mention only at 9.15 am on a date I will specify for the purpose of making orders insofar as the form of orders is agreed. Counsel will inform my associate whether they wish to argue any matter relating to the form of orders or in relation to costs on that occasion or on a later date.
1 which definition would also include the Park Manager - see s 143(1) 2 Perera v. Vandiyar [1953] 1 WLR 672 3 Lavender v. Betts[1942] 2 All ER 72 4 affidavit of Myrtle June Molloy, 7 February 2003
Last Modified: 04/22/2004 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.
Commissioner for Fair Trading
Tschannen & Ors
CITATION : Commissioner for Fair Trading v Tschannen & Ors [2004] NSWSC 67 HEARING DATE(S) : 22-26, 29 September 2003 3, 8 & 10 October 2003 JUDGMENT DATE : 18 February 2004 JURISDICTION: Common Law JUDGMENT OF : Sperling J at 1 DECISION : Counsel should bring in short minutes of order, including as to costs.
CATCHWORDS : Consumer protection - fair trading - power to make declarations and grant injunctions based on breaches of the Residential Parks Act 1998 - whether breaches of that statute - declarations - other relief refused Consumer, Trader & Tenancy Tribunal Act 2001, s52 Corporations Act 2001 LEGISLATION CITED : Fair Trading Act 1987, s4, s42, s43, s65, s66, s72 Residential Parks Act 1998, s3, s5, s8, s9, s10, s11, s20, s30, s41, s48, s53, s54, s61, s62, s63, s64, s67, s80, s82, s85 s87, s88, s89, s90, s98, s99, s100, s101, s102, s113, s121, s127, s128, s143, s144, s147 Residential Tribunal Act 1998 (repealed), s47A CASES CITED : Australian Competition & Consumer Commission v Goldy Motors Pty Ltd [2000] FCA 1885 Australian Competition & Consumer Commission v IMB Group Pty Ltd [1999] FCA 313 Commissioner for Fair Trading PARTIES : Warren Eric Tschannen Blackington Pty Ltd Caraco Pty Ltd FILE NUMBER(S) : SC 13202/02 COUNSEL : Ms JAD Needham for the Plaintiff Mr IM Wales SC for the Defendants SOLICITORS : Office of Fair Trading for the Plaintiff Graham Cochrane, Solicitor for the Defendants
[2002] FCA 62
(1990) 169 CLR 594
(2000) 202 CLR 45
(1985) 158 CLR 661
(2002) 189 ALR 76
(1956) 99 CLR 362