Solicitors:
Ken Lee Legal (plaintiff)
Tenants' Union of NSW Co-op Ltd (1st & 2nd defendants)
Crown Solicitor (3rd defendant)
File Number(s): 2013/98967
[2]
Judgment
HIS HONOUR: The plaintiff, Gennacker Pty Ltd ("Gennacker") seeks prerogative relief in this court in relation to a decision of the Consumer, Trader and Tenancy Tribunal ("The Tribunal"). On 4 December 2012, the Tribunal dismissed an application brought by Gennacker against the defendants, Donald and Laureen Bennett, to recover possession of a caravan site pursuant to the Holiday Parks (Long-term Casual Occupation) Act 2002: Gennacker Pty Ltd v Bennett (General) [2012] NSWCTTT 501.
Gennacker seeks an order of the nature of certiorari, setting aside the Tribunal's determination, and an order in the nature of mandamus, requiring the Tribunal to deal with the matter according to law. The orders are sought on the basis that the Tribunal gave an erroneous ruling as to its jurisdiction: s 65(2)(a) of the Consumer Trader and Tenancy Tribunal Act 2001. (Legislation in 2013 repealed that Act and established the Civil and Administrative Tribunal, which now exercises the Tribunal's functions.)
Gennacker is the owner of a caravan park in the Tweed Shire known as the Homestead Holiday Park. The Bennetts occupied a mobile home on a site in the park. It was that site which Gennacker sought to recover in the Tribunal proceedings. To understand the issues raised it is necessary to refer to some provisions of the Holiday Parks (Long-term Casual Occupation) Act and the Residential Parks Act 1998. I shall refer to those Acts in the abbreviated form adopted by the Tribunal in its reasons: the "Casual Occupation Act" and the "Parks Act" respectively.
Definitions of relevant terms are to be found in s 3 of the Casual Occupation Act. For present purposes they need not be examined in any detail. It is not in dispute that the Homestead Holiday Park is a "holiday park" for the purpose of the Act, that Gennacker was the "park owner", that the mobile home occupied by the Bennetts was a "moveable dwelling", that each of the Bennetts was an "occupant" of the home and that, at least initially, they were parties to an "occupation agreement" in respect of a "site." "Site" is defined to mean a site within a holiday park "that is used, or is intended to be used, for the installation of a moveable dwelling for long-term casual occupation … ." As occupants of a site, each of the Bennetts was a "long-term casual occupant."
The provision of the Casual Occupation Act at the heart of this matter is s 5(1), which provides:
"5 Act applies to long-term casual occupants
(1) This Act applies to any occupation agreement in relation to a site:
(a) entered into by an occupant who has a principal place of residence somewhere other than the site, and
(b) under which the occupant installs the occupant's own moveable dwelling on the site and leaves it there all of the time that the occupation agreement continues in force, and
(c) under which the occupant can occupy the site for no more than 180 days in any 12-month period (in a continuous or broken period), and
(d) under which:
(i) the occupant agrees, with the consent of the park owner, to be an occupant on a casual basis for at least 12 months, or
(ii) the occupant has, with the consent of the park owner, been an occupant on a casual basis for at least 12 months."
Section 26 of the Casual Occupation Act provided for applications to the Tribunal relating to issues between a park owner and an occupant about an occupation agreement. (That jurisdiction is now vested in the Civil and Administrative Tribunal.) Among the orders the Tribunal was empowered to make were orders terminating an occupation agreement and an order for possession of the site: s 27(1)(f). Those were the orders sought in the present case. Gennacker had sought to terminate the Bennetts' occupation by a notice of termination of 16 February 2012, seeking possession on 28 May 2012. By ss 28 and 29, Gennacker was entitled to recover possession under the occupation agreement without an order of the Tribunal. However, the advantage of obtaining such an order was the power of the Tribunal to enforce it by a warrant: s 30.
In 1998, the site occupied by the Bennetts, site 35, had been designated by the Tweed Shire Council as a long-term site, but in 2010 it had been approved as a short-term site. The home on the site was a "manufactured home" as defined in s 3 of the Act. It is not necessary to examine that definition. It was built in 1985, and passed through two owners before it was sold to the Bennetts in March 2008.
In the Tribunal there was a factual dispute concerning the occupation agreement between the parties, which was resolved and which is not challenged in this court. The Tribunal found that the parties entered into an occupation agreement in April 2008, providing for a fixed term of 1 month and stating that the Bennetts could only use the site for 180 nights per year and not more than 28 nights continuously. The agreement also provided for Gennacker to give the Bennetts 3 months notice of termination "on a no grounds basis" after the fixed term had ended.
The Bennetts owned a home in a Brisbane suburb, but the Tribunal accepted evidence that since March 2008 that home had been occupied by their son and his partner and they had resided continuously at the holiday park site from that time. They had paid rent or occupation fees to Gennacker between March 2008 and October 2012. Gennacker had not alleged any breach of the agreement during that period.
The issue between the parties had been whether the Bennetts' occupancy of the site was governed by the Casual Occupation Act or, as the Bennetts contended, by the Parks Act. That Act provides for a residential tenancy agreement, which is defined in s 3 as follows:
"'residential tenancy agreement' means any agreement under which a person grants to another person for value a right of occupation of residential premises for the purpose of use as a residence:
(a) whether or not the right is a right of exclusive occupation, and
(b) whether the agreement is express or implied, and
(c) whether the agreement is oral or in writing, or partly oral and partly in writing, and includes such an agreement granting the right to occupy residential premises together with the letting of goods."
"Residential premises" is defined in the same section as follows:
"'residential premises' :
(a) means any premises or part of premises (including any land occupied with the premises) used or intended to be used as a place of residence, and
(b) includes a residential site on which a moveable dwelling is situated or intended to be situated (or both a moveable dwelling and residential site), if the moveable dwelling is used or intended to be used as a place of residence."
"Residential site" is defined as "a site within a residential park that is used, or is intended to be used, for the installation of a moveable dwelling." The definition of "moveable dwelling" is the same as that in the Casual Occupation Act, and includes a manufactured home. The definition of "residential park" is in the same terms as the definition of "holiday park" in the Casual Occupation Act.
Section 5(1) of the Parks Act provides:
"5 Application of Act
(1) This Act applies to residential tenancy agreements under which:
(a) the residential premises consist of a residential site, or a moveable dwelling on a residential site, and
(b) the resident occupies the residential premises as the resident's principal place of residence, and
(c) in the case of an agreement entered into after the commencement of this section, the resident has the approval of the park owner or park manager to occupy the premises as the resident's principal place of residence."
There is no need to set out other provisions of the Parks Act. It is sufficient to say that both Acts are consumer protection measures, but the safeguards afforded by the Parks Act are more numerous and demanding than those in the Casual Occupation Act. In particular, termination under the Parks Act is governed by a number of provisions, which would not countenance termination on a "no grounds" basis.
For the purpose of deciding this central issue, the Tribunal recorded a number of findings of fact at paragraph 11 of its reasons:
"11. The following findings are made on the balance of probabilities:
1. That in March 2008 site 35 was a long term site.
2. If the site has been changed by the applicant or the local authority or both into a short term site, that fact has no relevance to this application. The changing of the status of a site cannot retrospectively change the terms of any agreement made by the parties unless there is a variation of the agreement. In this case there is no variation of an agreement entered into after the change of status of the site in 2010.
3. In April 2008 the parties entered into a written agreement pursuant to the Casual Occupation Act.
4. The agreement provides that the respondents can only occupy the site for 28 nights continuously or 180 nights in any year.
5. The respondents have resided in the home at the site continuously since March 2008.
6. Obviously the respondents are in breach of the Casual Occupation Act agreement they entered into because they have resided at the site in excess of the nights allowed for occupation.
7. There is no evidence that the applicant has enforced the terms of the Casual Occupation Act agreement in regard to the nights that the respondents can live at the site and there is no evidence that the applicant has alleged that the respondents have breached this term of the agreement.
8. The respondents own two houses, one at the park and one in Brisbane.
9. The respondents have occupied the house at the park as their principal place of residence.
10. The Brisbane house is not the respondents' principal place of residence."
The Tribunal concluded that the Bennetts' residency was controlled by the Parks Act, not the Casual Occupation Act, for the following reasons:
"12. The Casual Occupation Act applies to any occupation agreement in relation to a site (a) entered into by an occupant who has a principal place of residence somewhere other than the site, and (b) under which the occupant installs the occupant's own moveable dwelling on the site and leaves it there all the time that the occupation agreement continues in force, and (c) under which the occupant can occupy the site for no more than 180 days in any twelve month period (in a continuous or broken period), and (d) under which (i) the occupant agrees, with the consent of the park owner, to be an occupant on a casual basis for at least 12 months, or (ii) the occupant has, with the consent of the park owner, been an occupant on a casual basis for at least 12 months.
13. The Casual Occupation Act cannot apply to the respondents' occupation of site 35 because (1) they do not have their principal place of residence somewhere other than the site; (2) they did not install their moveable dwelling (defined to include a manufactured home) on the site but rather purchased a dwelling already on the site and (3) did not agree (with the consent of the park owner) to be an occupant on a casual basis for 12 months.
14. The Parks Act applies to a residential tenancy agreement under which (a) the residential premises consist of a residential site or a moveable dwelling on a residential site and (b) the resident occupies the residential premises as the resident's principal place of residence and (c) the resident has the approval of the park owner or the park manager to occupy the premises as the resident's principal place of residence.
15. Here (a) and (b) apply and in respect of (c) the park owner has given consent to occupy but not necessarily as a principal place of residence unless that can be implied or an estoppel arises given no action being taken by the park owner to enforce the 180 day rule.
…
17. The respondents refer me to the decision in Hayward v Hastings Riverside Co Pty Ltd (General) [2008] NSWCTTT 1002 where the Tribunal had a situation where the residents had entered into a site agreement pursuant the Parks Act but did not occupy the house on the site as their principal place of residence. The Tribunal found 'despite the existence of the written residential site agreement, the Haywards are in fact not residents under a residential tenancy agreement within the meaning of the Residential Parks Act' and the signing of the residential site agreement cannot alter the fact that they do not meet the requirements of the Residential Parks Act'.
18. In the present case the signing of an agreement pursuant to the Casual Occupation Act cannot alter the fact that the respondents do not meet the requirements of that Act.
19. The status of the occupation has to be determined by the applicable law. The parties cannot by agreement enter into terms which do not comply with that law. As Denning LJ said in Facchini v Bryson [1952] 1 TLR 1386 'the parties cannot by the mere words of their contract turn it into something else. Their relationship is determined by the law and not by the label they choose to put on it'.
20. The Parks Act affords protection to those residents who have a site agreement and occupy their home as their principal place of residence. Those residents cannot be given a no grounds notice of termination and their agreements can only be terminated for breaches of the agreement if the breaches are serious or persistent. Where the aim of legislation is to protect the public, a contract that is in breach of the legislation will be void.
21. Here the agreement entered into by the parties in March 2008 is void because it does not comply with the Parks Act and the respondents' occupation of the site does not meet the criteria of the Casual Occupation Act.
22. The applicant has issued a three months no grounds notice pursuant to the Casual Occupation Act. That notice cannot be issued because the Tribunal has found that the March 2008 agreement is void and that the respondents occupy the site pursuant to the Parks Act. A no grounds notice cannot be given via the Parks Act and consequently the application for termination of the respondents' agreement with the applicant cannot succeed."
The Tribunal described the issue in the case as "jurisdictional." Resort to it was not available under the Casual Occupation Act because that Act was held not to apply. The Tribunal found that the agreement under the Casual Occupation Act was void, and that Gennacker could not give the Bennetts a "no grounds three months notice of termination." Accordingly, the application was dismissed.
Gennacker seeks relief in this court on two grounds but it is the first of them, that the tribunal gave an erroneous ruling as to its jurisdiction, which is determinative of the matter. Counsel for Gennacker, Mr Eastman, submitted that the Bennetts' occupation on site 35 was at all times subject to an occupation agreement within the Casual Occupation Act and the Tribunal had jurisdiction to deal with the parties' dispute.
In written submissions, developed orally, Mr Eastman centered upon paragraphs 12 and 13 of the Tribunal's reasons, quoted at [15] above. Paragraph 12 recited the provisions of s 5(1) of the Casual Occupation Act, set out at [5] above, by which the application of the Act to long-term occupants is determined. Paragraph 13 expressed the reasons why the Act was found not to have applied in the present case. These were:
(1) The Bennetts' did not have their principal place of residence somewhere other than the site.
(2) They did not install their movable dwelling on the site, having purchased a dwelling which was already there.
(3) They did not agree, with the consent of the park owner, to be an occupant on a causal basis for 12 months.
Mr Eastman accepted that to succeed in the present proceedings he would have to show that the agreement met the prerequisites of s 5(1). He emphasised the third of the Tribunal's ten findings set out in [14] above, that is, that in April 2008 the parties entered into a written agreement pursuant to the Casual Occupation Act. Consistent with this was the fourth finding, that the agreement provided for the Bennetts to occupy the site for 28 nights continuously or 180 nights in any year. He pointed out it was the characteristics of "any occupation agreement in relation to a site" which is the focus of s 5(1).
The limitation of the Bennetts' occupancy to 180 nights in any year, he noted, was consistent with s 5(1)(c). From this it followed that, by the terms of the agreement, the site was not to be occupied by the Bennetts as their principal place of residence, consistent with subs (1)(a). He argued that the ninth of the ten findings of the Tribunal, that the Bennetts had occupied the house at the park as their principal place of residence, is not to the point. The objective intent of the agreement as to the permitted occupancy of the site was to be determined by the plain meaning of its terms: cf Codelfa Constructions Pty Ltd v State Rail Authority (NSW) (1981-82) 149 CLR 337, particularly per Mason J at 352. Indeed, the sixth finding of the Tribunal was that the Bennetts were in breach of the Casual Occupation Act agreement because they had resided at the site in excess of the nights allowed for occupation.
On the face of it, subs (1)(b), requiring that the occupant "installs the occupant's own moveable dwelling on the site …", is not met. The Bennetts had purchased the dwelling on site 35, which had been there for a considerable period of time. However, Mr Eastman contended for a practical interpretation of this provision. He argued that it is directed at moveable dwellings which are not the property of the park owner, as opposed to dwellings which are and to which the Residential Tenancies Act 2010 would otherwise apply. Paragraph (b), he said, would embrace the present situation, where a person purchases a moveable dwelling from a former occupant, leaves it on the site, and enters into an agreement with the park owner as a long-term casual occupant. Were it otherwise, he argued, the Act could never apply to such an agreement in respect of a dwelling already on a site (unless the would-be occupants were prepared to go through the charade of removing the dwelling and re-installing it).
As to the Tribunal's finding that the Bennetts had not agreed, with the consent of the park owner, to be an occupant on a casual basis for 12 months, Mr Eastman pointed out that that was a reference to subs (1)(d)(i). He accepted that that provision was not applicable in the present case, but noted that the Tribunal made no finding in respect of sub-paragraph (ii) of that paragraph. That sub-paragraph provides, as an alternative, that "the occupant has, with the consent of the park owner, been an occupant on a casual basis for at least 12 months." He pointed out that, on the evidence, the Bennetts had occupied the site since 2008 up to the time of the application to the Tribunal in 2012. Certainly, they had not done so on a casual basis as they had been residing there permanently. Here also, Mr Eastman argued, that is not to the point. Their entitlement to occupy the site was derived from a long-term casual occupation agreement. The nature of that agreement was not altered by the fact that, in breach of it, they resided there permanently. Again, he relied on the third, fourth and sixth of the Tribunal's ten findings set out at [14] above.
Finally, Mr Eastman noted s 7 of the Casual Occupation Act, which provides:
"7 Residential Parks Act 1998 has no application
(1) The Residential Parks Act 1998 does not apply to an agreement to which this Act applies.
(2) Nothing in this Act has the effect of entitling an occupant under an occupation agreement to which this Act applies to be regarded as a resident under a residential tenancy agreement to which the Residential Parks Act 1998 applies."
A converse provision, ousting the application of the Casual Occupation Act, is to be found in s 6A of the Parks Act.
In written submissions, also developed orally, counsel for the Bennetts, Ms McMahon, supported the Tribunal's approach and its conclusion. While accepting the finding that in April 2008 the Bennetts had entered into an agreement under the Casual Occupation Act, she submitted that the conduct of the parties thereafter was not in accordance with s 5 of that Act. She relied upon the Tribunal's finding that the Bennetts had occupied the site as their principal place of residence. She challenged Mr Eastman's construction of s 5(1)(b) of the Casual Occupation Act, relating to the installation of an occupant's own moveable dwelling, arguing that his submission distorted the plain meaning of the provision. As to sub-paragraph (d)(ii), dealing with occupation, with the park owner's consent, on a casual basis for at least 12 months, she argued that that pre-requisite was not met because the Bennetts' occupation had not been on a casual basis.
Ms McMahon submitted that the Tribunal had correctly determined that the Bennetts' occupation was governed by the Parks Act on the basis expressed in paragraphs 14 and 15 of its reasons, quoted at [15] above. Their occupancy met the prerequisites of s 5(1) of the Parks Act, addressed in that part of the Tribunal's reasons. That subsection is set out at [13] above. Ms McMahon also noted that the definition of "residential tenancy agreement", set out in [10] above, does not require such an agreement to be in writing and it can be implied.
She argued that the requirement of s 5(1)(c) of that Act, that the resident has the approval of the park owner to occupy the premises as the resident's principal place of residence, was met either through estoppel or by inference from Gennacker's conduct over the 4 year period prior to the application to the Tribunal. As to that, she noted the seventh of the ten findings of the Tribunal set out at [14] above, that there was no evidence of Gennacker having previously enforced the terms of the Casual Occupation Act agreement in relation to the occupancy permitted by it and, equally, no evidence that it had alleged any breach by the Bennetts of the terms of that agreement. In addition, she noted that there had been previous proceedings between the parties in the Tribunal, being an application by the Bennetts alleging an excessive rent increase, which was settled. This was referred to in paragraph 9 of the Tribunal's reasons in the present case, noting that that earlier matter had been listed as a case pursuant to the Parks Act.
Ms McMahon submitted that, on the facts established by the evidence, the Tribunal was right to conclude that, although an agreement under the Casual Occupancy Act had been entered into at the outset, the Bennetts' occupancy was not consistent with s 5 of that Act and, accordingly, the Act did not apply. She noted the Tribunal's reference in paragraph 17 of its reasons to its decision of Hayward v Hastings Riverside Co, in which a written agreement purporting to be pursuant to the Parks Act was found not to be so because the applicants never intended to occupy the premises as their principal place of residence: s 5(1)(b) of the Parks Act.
It appears to me that the present case is distinguishable from Hayward. In that case, although the applicants were parties to the written agreement, it was another person, Ms Lorraine Bennett, who moved into the premises and resided there. The Tribunal found that at no time did the applicants intend to occupy the dwelling as their principal place of residence. Importantly, however, the Tribunal noted that this was known to the park owner from the outset. The Tribunal's reasons referred to evidence "from the park owner" that "at all times Mr and Mrs Hayward said that they would not be moving into the park but the dwelling would be occupied by Ms Bennett."
There was no evidence in the present case that Gennacker knew that the Bennetts intended to occupy the site as their principal place of residence. Indeed, the evidence is to the contrary. At the Tribunal hearing the parties were not legally represented. Mr Bennett represented himself and his wife, and Gennacker's representative was a Mr Willmott. In answer to questions from the Tribunal member, he gave the following evidence:
"MEMBER: Now, from your recollection is the - did the Bennetts live there more than 180 days right from the start, from 2008?
WILLMOTT: I do not know that.
MEMBER: When do you - when is your first recollection of them living more than 180 days?
WILLMOT: By his statement in the witness box, that he's living there as his permanent place of residence.
MEMBER: What, you did not know it before today?
WILLMOTT: No. The thing is, is that it is impossible - the classification, as I understand the interpretation of living there for 180 days, is the person sleeps there overnight. Now, the thing is, is it's impossible to ascertain who sleeps where on any (not transcribable). You'd have to stand outside, 24 hours a day, seven days a week, and turn round and not who's occupying.
MEMBER: No, no, but are you saying that, so far as the park owner is concerned, the park owner doesn't know that Mr and Mrs Bennett have been living there for four or five years as permanent residents?
WILLMOTT: Exactly. I do not know - I know he is - well, by the agreement, he has occupied it for that period of time. Under the agreement it is his responsibility to comply with the occupancy of it, which the agreement clearly says, and I have no way, other than to stand outside, or have a guard or somebody stand there every day."
The decision in Hayward turned upon the fact that the bargain which the parties made, in the light of the circumstances known to them, did not comply with the Parks Act. That is not this case. Here, even though the Bennetts may have intended to use the dwelling on the site as their permanent place of residence, the agreement they entered into with Gennacker was an occupation agreement under the Casual Occupation Act, as the Tribunal found.
I accept Mr Eastman's submissions as to the conformity of that agreement with the prerequisites of s 5(1) of the Casual Occupation Act, including his argument as to the effect of the prerequisite under subsection (1)(b) concerning the installation of the occupant's own movable dwelling. If the Bennetts occupied that dwelling as their permanent residence, inconsistently with that agreement, they were in breach of it. As Mr Eastman put it in oral argument, it would do violence to the operation of the legislation if, by breach of the agreement, they could convert it unilaterally into an agreement of a different kind.
I should add that the observation Denning LJ in Facchini v Bryson referred to in paragraph 19 of the Tribunal's reasons must be understood in its context. That was a case requiring the interpretation of an agreement giving an employee access to premises owned by his employer. The document provided that "nothing in this agreement shall be construed to create a tenancy between the parties". However, in the light of rights conferred upon the employee by other terms of the agreement, it was held that, read as a whole, it created what was in law a tenancy. The court was concerned simply with the construction of a written contract, and its reasoning throws no light upon the present case.
It follows that I am satisfied that the Tribunal fell into error in determining that it had no jurisdiction to deal with Gennacker's application under the Casual Occupation Act, and that Gennacker is entitled to the relief it seeks. The Tribunal's determination must be set aside and the matter remitted to the body now exercising that Tribunal's jurisdiction, the Civil and Administrative Tribunal, for determination according to law. If necessary, I shall hear the parties on costs.
[3]
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Decision last updated: 11 June 2015