//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2006] VCAT 1425
Victorian Civil and Administrative Tribunal
2006-06-29
Original judgment source is linked above.
The applicant submitted that John and Patsy Cannard are the only persons named in the contract. The breach of duty notice dated 04 July 2005 includes a breach of section 174. The contract does not limit the number of persons residing on site 23 to 2 and I do not accept that such a limitation can be implied. The contract was drawn up by the applicant and any ambiguity should, in my opinion, be interpreted against its interests.
John Cannard stated that their daughter and her child stayed on site 23 for 18 months about 8 years ago and more recently, she stayed for 1 year, leaving about a month ago. Their daughter was sick when she came to live with them the first time and they saw the manager Jeanette Collins who said their daughter and grandchild could stay. No mention of rent was made by Jeanette Collins. The Cannards believed that Summerhill wanted to keep families together. When their daughter returned about 1 year ago they discussed the matter with Jeanette Collins and again she mentioned nothing about rent. Stephen Wellard stated that he became aware of the presence of the Cannards' daughter when reviewing files in the absence of the then manager, Jeanette Collins. He had perused the files and there was nothing written by Jeanette Collins that additional rent would be waived and if there were such a concession it would be outside the manager's authority. Stephen Wellard also stated that the rule relating to additional rent was applied to all residents where Summerhill was aware of the presence of a visitor. For the Cannards it was submitted that an estoppel was created by the actions of Jeanette Collins. The submission was rejected on behalf of the applicant. I find that the evidence of John Cannard was truthful and consistent and not subjected to doubt by any evidence for the applicant. The applicant is claiming additional rent at $30.00 per fortnight back to 31 December 2004. On the applicant's documentation, the Rules were introduced in March 2005. If the issue of estoppel were to become relevant to this decision then, in my opinion, the earliest date additional rent could be claimed from the Cannards is 7 days after 18 March 2005.
For the Cannards it was submitted that their daughter had occupied site 23 for at least 90 consecutive days as her only or main residence (definition (b) of "resident" in section 3). Given my findings and interpretation of the Act detailed above, it is not necessary to come to a final conclusion on this submission. However, I am of the opinion that the Cannards' submission is correct. To hold otherwise would lead to the absurdity that a resident's new baby would be considered a visitor. In my opinion "visitor" should be given its normal and natural meaning which is someone temporarily resident with a person or at a place (see The Concise Oxford Dictionary).
14. It was also submitted for the Cannards that rule 7 in the Rules was ultra vires, unreasonable and/or invalid under section 185 as it did not relate to any of the matters referred to in sub-section (2). I am not persuaded as to the merits of this submission. Provided that there is compliance with section 183 at the outset, I do not consider that a rate or change in rate could not be set out in the Park Rules.
15. As detailed above, I consider that the application for possession should fail and be dismissed. I have found that the application was not served in accordance with the Act; that the Cannards did not owe at least 7 days rent at the time of "service" of the notice to vacate; that there being no charge for visitors at the commencement of the residency agreement, the applicant was not entitled to impose such a charge at a later date; that the applicant was bound (estopped) by the actions of its manager; that there was no contractual limit to the number of persons entitled to reside on site 23; and the Cannards' daughter having stayed more than 90 days and having no home elsewhere at the time was a resident, not a visitor. On each of these bases, the application must fail.
16. I have been requested by the parties to reserve on the matter of costs and do so. The parties have leave to serve and file written submissions as to costs within 21 days and submissions in reply within 14 days thereafter.
Ellerton Lodge Pty Ltd
Cannard