Gennacker Pty Ltd v Bennett

NCAT Appeal Panel|2015-03-23

Donald Bennett and Ors (respondents) - see Annexure A Representation: Mr Gunning, Counsel (appellant) Dr Martin (respondents)

Solicitors: KL Legal, Solicitors (appellant) File Number(s): See Annexure A Publication restriction: Unrestricted Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Citation: [2014] NSWCATCD 165 Date of Decision: 5 September 2014 Before: J McMillan, General Member File Number(s): See Annexure A

reasons for decision

These reasons relate to multiple appeals arising from a decision of the Tribunal made on 5 September 2014 (Decision).

Tribunal proceedings

The original proceedings were heard by the Tribunal on 25 June 2014.
It is apparent from the Decision that the appellant challenged the standing of a number of the applicants to bring applications under the RP Act because they had each signed agreements with the appellant titled "Occupation Agreement". The appellant had argued before the Tribunal that these agreements were not subject to the RP Act. Rather, the appellant said the agreements had been made under and were regulated by the Holiday Parks (Long-term Casual Occupation) Act, 2002 (Holiday Parks Act).
In relation to other respondents, the appellant accepted that they had residential tenancy agreements and that the provisions of the RP Act apply to those particular residents.
Annexure A records which of the respondents had signed a written "Occupation Agreement" and which of the respondents had signed a residential tenancy agreement to which the provisions of the RP Act applied.
In addition to the jurisdictional question, in all applications the appellant contended that the existing rent and the proposed rent increase was not excessive.
The Tribunal rejected the challenge by the appellant that those respondents who had an Occupation Agreement could not bring an application under the RP Act. It is necessary to set out the reasons of the Tribunal in rejecting this challenge: 2 The park owner challenged the standing of a number of the applicants to bring the applications. It was argued that they were not under the Residential Parks Act 1998 because they had signed agreements, prepared by the park owner, and titled Occupation Agreement. These agreements, it was argued, were made under the Holiday Parks (Long-term Casual Occupation) Act 2002. The park owner tendered seven residential site agreements under the Residential Parks Act 1998 and 19 other agreements titled occupation agreement. The occupation agreements comprised a front sheet, a copy of the park rules and attached was an occupational agreement that had in bold letters "Park Owner's Copy" which were blank. A perusal of these show that six provided for a term of more than 12 months, three provided for a term of 6 months, one provided for a term of 2 months and five provided for a term of one month and one did not provide for any fixed term. The agreement for site 136 provided for a fixed term commencing on 1 February 2014 and ending on 31 March 2016. 3 Residents who signed occupational agreements gave evidence before the Tribunal. None had a principal place of residence other than the park. They had their address at the park for mail, drivers' licence and the electoral roll. All conceded that they were not given approval by the park owner to occupy their site as a principal place of residence. Some received rent assistance from Centrelink that was given on the basis that the residence they occupied in the park was their principal place of residence. It is noted the park owner denied that the residents had presented forms to it for them to apply to Centrelink for rental assistance. The park owner in its submissions denied that it knew the number of nights the resident occupied the premises. 4 One or two owned residences at the time they entered into the agreements but these have been sold or assigned to family members. 5 All had occupied the sites continuously since they commenced occupation and stayed for a period of more than 180 days in a 12 month period. 6 Section 5 of the Holiday Parks (Long-term Casual Occupation) Act 2002 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. (2) This Act applies whether the relevant occupation agreement was entered into before or after the commencement of this section, unless a particular provision provides otherwise. (3) Subject to sections 14 and 16, if this Act applies to an occupation agreement, it so applies despite the terms of any such occupation agreement or any other contract, agreement or arrangement, whether made before or after the commencement of this section. 7 Sections 6 and 7 provide; 6 Agreements and sites to which Act does not apply (1) This Act does not apply to an occupation agreement of a class prescribed by the regulations for the purposes of this subsection. (2) This Act does not apply to: (a) any site ordinarily used or intended to be used for tourist arrangements or other holiday purposes other than long-term casual occupation of the kind described in section 5 (1), or (b) any site, or part of a site, prescribed by the regulations for the purposes of this paragraph. 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. 8 Sections 5, 6 and 6A of the Residential Parks Act 1998 (the Act) relevantly provide; 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. (1A) A person does not cease to occupy residential premises as the person's principal place of residence by reason only that the person is absent from the premises for the purpose of receiving medical, nursing or domestic care. (2) This Act applies whether the relevant residential tenancy agreement was entered into before or after the commencement of this section, unless a particular provision provides otherwise. (3) Where this Act applies to a residential tenancy agreement, it so applies despite the terms of any such residential tenancy agreement or any other contract, agreement or arrangement, whether made before or after the commencement of this section. 6 Agreements and premises to which Act does not apply (2) This Act does not apply to: (c) any premises ordinarily used for holiday purposes, or 6A Act does not apply to long-term casual occupation This Act does not apply to an agreement or to a site to which the Holiday Parks (Long-term Casual Occupation) Act 2002 applies. 9 The Tribunal in consideration of the evidence is satisfied the residents do not have another place as their principle place of residence. They have occupied the sites for more than 180 days in a twelve month period. The park owner has dealt these residents as if they were under the Act and has given notices of rent increase in accordance with the Act. The park owner has not given approval in writing for any resident to occupy their site on a permanent basis but has not sought to enforce provisions of the occupation agreement particularly when being aware that the sites were occupied for more than 180 days of a 12 month period. He has not sought to claim an occupation fee for the overstayed period but continued to collect site fees. It is the view of the Tribunal that the park owner is well aware of the period of time people occupy their sites. 10 The distinction between the two acts is the location of the resident's principal place of residence. The residents have not acted in any other manner than as permanent residents of the park and their relationship with the park owner has been consistent with the relationship provided under the Residential (sic) Act 1998. In consideration of the evidence before it the Tribunal finds the residents who applied to the Tribunal have their principal place of residence in the park and are therefore under the Residential Parks Act 1998
In relation to the rent increase claim there were two issues. The first was that the increase of rent from 1 April 2013 had not been properly notified.
The Tribunal concluded that consent orders made in application RP 12/09297 on 19 April 2012 (2012 Consent Orders) were not appropriate notice of a rent increase from 1 April 2013. In consequence, the Tribunal found that the appellant had not complied with s 55 of the RP Act and was required to refund any payments received: see Decision paragraph 11-16.
Secondly, in relation to the claim to increase the rent for the period from 1 April 2014, the Tribunal determined that the rent increase was excessive and fixed the rent increase for each of the respondent's sites in the amounts specified in the schedule to the Decision. However, excluded from the schedule was site 136 which is occupied by the respondent, Ms Markwell. In her case, the Tribunal made an order that rent not be increased because her agreement was for a fixed term from 1 February 2014 until 31 March 2016 and there was no provision in the agreement for increasing the rent during the fixed term.
It should be noted in respect of the respondent Markwell that her form of agreement was an "Occupation Agreement".
Finally, it should be noted in relation to the 2012 Consent Orders that not all respondents were parties to those orders. The respondents who were parties are marked "yes" in the column in Annexure A headed "Consent orders 19/4/2012".

Notice of appeal and reply to appeal

In paragraph 11A of the notice of appeal the appellant identified the orders of the Tribunal being challenged as follows: i. The rent shall not exceed the sum per week as shown in the schedule as from 1 April 2014 to 31 March 2014.
This was order 1 made on 5 September 2014.
In item 11A of the Notice of Appeal there was no reference to orders 2 and 3 which were in the following terms: 1 The increase of 3.3% and charged from 1April 2013 to 31 March 2014 is to be refunded to the applicant(s). 2 The rent for site 136 is not be increased (sic) because the agreement is under a fixed term for the period 1 February 2014 and ending on 31 March 2016 and there is no provision in the agreement for increasing the rent during the fixed term.
However, the grounds of appeal set out in item 11B of the notice of appeal were as follows: Issue of jurisdiction regarding excessive rent increase decision applied to occupants under agreements to which Holiday Parks (Long-term Casual Occupation) Act applies. Varied terms of contract were agreed and it was ignored by tribunal.
The appellant contended that the "applications should be dismissed".
Further, the appellant did not seek leave to appeal from a decision of the Consumer and Commercial Division. That is, the appellant was claiming the Tribunal had made errors of law. As is evident from the grounds of appeal, those errors were: 1. that the Tribunal had no jurisdiction to determine disputes concerning Occupation Agreements which were subject to the Holiday Park Act; 2. the Tribunal had failed to have regard to the terms of the contracts between the various respondents which were varied.
The respondents have provided Replies to Appeal. Rather than setting out the terms of each document, it is convenient to record the grounds set out in the reply to appeal in proceedings AP 14/48780 as they are the substance of all the responses. They can be summarised as follows.
In relation to the jurisdictional issue and those respondents with an Occupation Agreement the respondents say: 1. "the appellant has a history of wilfully providing incorrect agreements to residents who occupy their sites as their principal place of residence, on the mistaken and assumption that these papers will override the statutory requirements for residential site agreements issued under the Residential Parks Act, 1998" and that the Tribunal correctly dealt with this matter in paragraph 10 of the Decision; 2. the appellant's actions constituted an attempt to contract out of the provisions of the RP Act which is prohibited under s 144 of the RP Act.
In advancing these grounds the respondents refer to earlier decisions of the Tribunal. In particular the respondents referred to a decision of the former Consumer, Trader and Tenancy Tribunal (CTTT) in Hannah and others v Hacienda Holiday Park (Residential Parks) [2012] NSWCTTT 285 (20 July 2012) wherein Mr Wilmott, one of the officers of the appellant company and also an officer of Hacienda Caravan Park Pty Ltd, had made submissions concerning the effect of the Occupation Agreement as contended in these proceedings which the respondent says were rejected by the Tribunal.
It should be noted that the respondent who was the park operator in those proceedings and the holiday park to which those proceedings related were not the park owner and holiday park to which the present appeals relate.
In relation to the second ground of appeal, namely that the varied terms of agreement were ignored by the Tribunal, the respondents say that the Tribunal was correct in concluding that the requisite notice had not been given and that the notations in any consent order were insufficient to comply with the requirements of s 53 of the RP Act.
The respondents also say that, in so far as the notice of appeal should be interpreted as challenging order 3 (which relates to site 136 and the dismissal of the rent increase claim because that site was subject to a current fixed term agreement) no grounds for challenging this order have been put forward.

Hearing of the appeal

The appeal was heard on 23 March 2015.
At the appeal, the appellants were represented by Mr Gunning of Counsel instructed by KL Legal. The respondents were represented by Dr Martin. The Appeal Panel had made orders granting leave for each of the parties to be represented.
Each of the parties made oral and written submissions.
During the hearing the Appeal Panel identified that the appellant had not commenced appeal proceedings in respect of several of the respondents.
The Appeal Panel also sought clarification in relation to which of the appeals gave rise to a consideration of the jurisdictional issue, namely whether the RP Act applied to an Occupation Agreement.
The appellant was given leave to file further notices of appeal against those applicants who were parties to the original decision but for which a formal notice of appeal had not been filed. The appeals that were subsequently filed and the parties to those appeals are detailed in Annexure A and the submissions made by the parties are dealt with below as necessary.
Leave was also given for the parties to file and serve further submissions in connection with issues that arose in the course of the hearing on 23 March 2015.
In relation to the challenge to jurisdiction for those respondents identified as having an Occupation Agreement, it is convenient to provide a general summary of the submissions made.
However, in relation to appeal AP 14/55586, which involves Donald and Lauren Bennett (site 35), it will be necessary to consider this appeal separately. This is because there is an earlier determination of a dispute between the appellant and the Bennetts concerning whether or not the Holiday Parks or RP Act applies to their Occupation Agreement. This dispute was resolved by the CTTT which made orders and published reason on 4 December 2012. The decision is Gennacker Pty Ltd v Bennett (General) [2012] NSWCTTT 501. Those proceedings related to an application by the appellant to terminate the Occupation Agreement which was refused, the Tribunal finding that the RP Act and not the Holidays Parks Act applied to the particular agreement in question.
This decision of the Tribunal was the subject of an application to the Supreme Court of New South Wales being proceedings 2013/98967. Those proceedings were apparently commenced by summons dated 28 March 2013. In those proceedings the appellant sought against the Bennetts an order quashing or setting aside the determination of the CTTT on 4 December 2012. On 11 June 2015 Hidden J quashed the decision of the CTTT, found the Occupation Agreement was subject to the Holiday Parks Act and remitted the application for rehearing by NCAT: see Gennacker Pty Ltd v Bennett [2015] NSWSC 726 (Bennett Supreme Court Proceedings).
The effect of this decision is considered below.

Appellant's submissions

In relation to the respondents who had Occupation Agreements, and whether the Tribunal had jurisdiction, the submissions of the appellant can be summarised as follows: 1. The RP Act applies to residential tenancy agreements which satisfy the criteria in s 5(1) of the RP Act. 2. If the requirements in s 5(1) are not met then the RP Act does not apply and the Tribunal has no jurisdiction to make orders in connection with such agreements under the RP Act. 3. Further, the Tribunal has no jurisdiction generally, that jurisdiction being relevantly conferred by ss 28 and 29 of the Civil and Administrative Tribunal Act, 2013. 4. The facts as found by the Tribunal do not support the conclusion that the requirements of s 5 of the RP Act have been satisfied because: 1. the residents signed Occupation Agreements under the Holiday Parks Act, not residential tenancy agreements satisfying the requirements of s 5 of the RP Act; and 2. The Tribunal found that all residents who signed Occupation Agreements "conceded that there were not given approval by the park owner to occupy their site as a principal place of residents": see Decision at [3]. Therefore the jurisdictional fact was not satisfied. 1. There was no residential tenancy agreement within the meaning of s 5 of the RP Act because those respondents who had Occupation Agreements had "for value a right of occupation of residential premises for the use a resident". The rights granted were under an Occupation Agreement and were not rights given to occupy the site as a principal place of residence. 2. The Tribunal erred in law in applying the wrong test to determine whether or not the RP Act applied. 3. The Tribunal erred in law in taking into account and/or finding facts that are not relevant to determining the issue of jurisdiction under s 5 of the RP Act; 4. There was no evidence to support the facts that the Tribunal otherwise needed to find under s 5 of the RP Act; 5. The Tribunal did not find there was any residential tenancy agreement between the appellant and any of the respondents and in so far as the Tribunal failed to do so this amounted to an error of law because the reasons of the Tribunal were deficient. In this regard the appellant relied upon Pollard v RRR Corp Pty Ltd [2009] NSWCA 110. 6. In so far as there was no evidence to support the finding that there was a residential site agreement or residential tenancy agreement, a fact which the appellant contends, the appellant relied on the decision of the Supreme Court in The Australian Gas Light Co v The Valuer General [1940] 40 SR (NSW) 126 and Commcare Australia v Lees (1997) 151 ALR 647 and said that no inference that there was a residential tenancy agreement was otherwise open to be made upon the primary facts. In this regard the appellant relied on Australian Broadcasting Tribunal v Bond 170 CLR 321 at 356 and Bruce v Cole (1989) 45 NSWLR 163 at 188.
Consequently, the Tribunal fell into jurisdictional error.
Also, the appellant said that the Tribunal failed to provide sufficient reasons and that there was, in the present case, an error on the face of the record because of the deficiencies. Particularly the Tribunal failed to provide reasons why it concluded that the appellant had "dealt with these residents as if they were under the Act and has given notice of rent increases in accordance with the Act": see Decision [9].
In oral submissions the appellant relied on the terms of the written Occupation Agreement, in particular the terms of: 1. Clause 65.1 (whole agreement clause); and 2. Clauses 45.1 and 45.2 (which limited the right of the particular respondents to occupy the particular site for more than 180 days in total or 28 days without consent).
The appellant submitted that there was no finding of the Tribunal that the particular Occupation Agreements had been varied and nor did the Tribunal conclude that the appellant was estopped from denying the relevant jurisdictional facts existed.
On the issue of variation, the appellant submitted that the usual principles of contract formation apply, which requires offer, acceptance and consideration. In doing so, the appellant accepted that an agreement to discharge an earlier agreement may be inferred by conduct. The appellant referred to the decision of the High Court in Concut Pty Ltd v Worrell (2000) 176 ALR 693 at [19] and submitted that the determining factor in deciding whether or not an agreement was subsequently varied or discharged by a later agreement will be the intention of the parties
However, the appellant, through its counsel, confirmed that the appellant did not challenge the finding that all of the respondents who had Occupation Agreements in fact occupied the particular locations as their principal place of residence.
In relation to the question raised during the hearing of the appeal whether the orders made by the CTTT in earlier proceedings gave rise to an issue estoppel or res judicata to the effect that there was a residential tenancy agreement under the RP Act, the appellant said: 1. there was no determination on the merits in respect of the 2012 Consent Orders as to whether the RP Act applied; 2. there has been no hearing where evidence might have been received or admitted in relation to the earlier proceedings; 3. no res judicata or issue estoppel could arise where proceedings have been compromised without a hearing. In this regard the appellant relied on the decision in Langley v Age Co Ltd [2002] VSC 243 per Ashley J at [18]; 4. further, where an order is made by consent or notation, it is difficult to determine what is necessarily decided that might give rise to an issue estoppel or res judicata. In this regard the appellant relied on the decision of Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 504 at 508. 5. In the absence of evidence, particularly of negotiations, it is difficult to determine if the parties turned their minds to whether orders or notations that they consented to were intended to be made under the RP Act; 6. in any event, if the Tribunal in fact had no jurisdiction to give a binding decision on the matter under consideration, a plea of res judicata will have no effect. The appellant relied on the decision of Marks v National and General Insurance (1993) 114 FLR 416 at 418, which referred to the decision of Torrisi v Oliver [1951] VLR 380.
Lastly, the appellant said that res judicata, issue estoppel, variation of the Occupation Agreements and/or promissory estoppel were not matters raised before the Tribunal at first instance.
In relation to the challenge to the Tribunal's decision concerning the rent increase, the appellant relied on s 53(8) and said that a rent increase is permissible in circumstances where notice is given or by order of the Tribunal. That is, that a rent increase is payable if it is increased in accordance with a proper notice given under s 53(1) and (2) or there is an order of the Tribunal.
The appellant submitted that such an order was made by the Tribunal in proceedings RP 12/09297 on 19 April 2012 and that this order was final and binding. The appellant said "the decision is res judicata".
Consequently, the appellant submits that the Tribunal had no power to make an order requiring a refund of any overpaid rent and/or erred in concluding that the rent increase was ineffective because notice had not been given. The appellant submitted that this constituted an error in law because the Tribunal purported to exercise a power to order a refund in circumstances where it had no jurisdiction to do so.
The appellant also submitted that the conduct of the respondents in seeking to re-litigate this issue constituted an abuse of process which the Tribunal wrongly permitted.
Finally, and in the alternative, the appellant submitted that the orders otherwise constitute notice which satisfy the requirements of s 53 and that the Tribunal erred in law in failing to take account of material evidence, namely the consent orders, when it came to determine whether or not proper notice was given.
The appellant said that if the Tribunal had correctly determined that the consent orders constituted notice, it would also have dismissed the applications of the respondents as being out of time because the relevant notice was given on 19 April 2012 and s 54(3) of the RP Act requires any application to be lodged no later than twelve months after the relevant notice is given.
In relation to the order declaring the rent increases were excessive, that is those rent increases to take effect from 1 April 2014, the appellant also submitted that these applications were out of time by reason of the fact they were lodged more than 30 days after: 1. The date the resident was given notice of the rent increase; or 2. The date the resident was given notice of a rent increase under a proposed residential tenancy agreement for premises already occupied by the resident.

Respondents' submissions

In reply, the respondents made oral and written submissions. In relation to whether or not the appellant had provided approval to those with Occupation Agreements to occupy the premises as their principal place of residence the respondents made the following written submissions: 1. a park owner's approval is usually express in the form of a written residential site agreement as required by s 7 of the RP Act; 2. a park owner's approval does not necessarily have to be express, but can be implied, usually by either the provision of a residential site agreement (express), or by the acceptance of rent; 3. by accepting rent from the respondents and signing rent assistance applications the appellant has provided implied approval to the respondents to occupy their sites as their principal place of residence; 4. various meter readings and invoices would corroborate the fact that each of the residents occupies the premises year round. In any event, the finding that they occupy the premises as their principal place of residence is not challenged; 5. the appellant is not entitled to "rely on his own wilful disregard of the RP Act to assert a lack of jurisdiction (the non-provision of an Agreement in the Standard Form, that is, explicit approval to occupy), while at the same time, insisting that the actions of the Respondents, (occupying their sites as their principal place of residence) are nothing more than a breach, rather than an action which interferes with the jurisdiction of the Holiday Parks (Long Term Casual Occupation) Act 2012"; 6. the respondents relied on the reasoning in the 4 December 2012 decision of the CTTT (supra) Gennacker v Bennett, and said in respect of s 5(1) of the RP Act that: 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. 1. the parties cannot contract to enter into an arrangement that is not permitted by law; 2. there have been previous proceedings between the parties (RP 12/09297) in which orders were made and the appellant did not challenge the jurisdiction of the Tribunal to make orders at that time and 3. the appellant has not otherwise commenced proceedings against respondents who have Occupation Agreements asserting that they have breached their agreement by reason of the fact they live there continuously and have done so for four and a half years.
Dr Martin made oral submissions to the Appeal Panel to a similar effect.
Dr Martin also submitted that the relationship between the parties cannot be changed by way of a label, that the particular respondents had occupied the park sites all year round and that it was for the park owner to enforce any obligation to prevent occupation for greater than 180 days, otherwise the park owner would be taken to be granting an extension of time. Further, the respondents submitted that the appellant had in fact issued notices of rent increase under the RP Act.
In relation to the question of estoppel, the respondents submitted that by allowing them to continue to occupy the premises and by taking part in proceedings in the Tribunal and consenting to orders under the RP Act, the appellant was estopped from denying that those respondents who had Occupation Agreements were doing so pursuant to agreements which allowed them, with the consent of the appellant, to occupy their sites as their principal place of residence.
In written submissions filed after the hearing, Dr Martin made reference to the decision of the High Court in Port of Melbourne Authority v Anshun Pty Ltd (1980) 147 CLR 35. Dr Martin said that it would be unreasonable to allow the appellant to now raise an issue of objection to jurisdiction, the respondents referring to earlier proceedings, including RP 07/11765.
The respondents submitted that there had been no challenge to earlier decisions of the Tribunal (presumably referring to the CTTT) in consequence of notices of rent increase issued by the appellant which were the subject of challenge.
Of the 2007 proceedings Dr Martin said "18 of the Applicants in those matters are sites listed above as premises subject to this appeal". It is unclear whether Dr Martin is referring to the sites being the subject of the earlier proceedings or the particular applicants as being parties to the earlier proceedings. In any event, it does not appear these proceedings were referenced in the Decision.
Dr Martin also made reference to there being no evidence to show that at any time during the past decade the appellant had thought to appeal or challenge the jurisdiction of the Tribunal. Dr Martin submitted that if such a challenge had been made and was successful the amount of "rent" paid by each of the respondents "would have been substantially lower than those currently paid".
It is unclear whether this submission relates solely to the question of whether or not there is an "Anshun estoppel" or some other form of estoppel arising by reason of a detriment suffered by the respondents.
Finally, at paragraph 22 of his written submissions dated 2 April 2015, Dr Martin submitted that this was not a case where Occupation Agreements have been varied to residential tenancy agreements. Rather, he submitted: 1. That "the RP Act has always been the appropriate and relevant legislation" ; 2. that " those clauses in any Occupation Agreement which are in conflict with the RP Act, are void"; and 3. that the "Appellant knows it and has used it when it suits him to do so".
In relation to the decision of Hidden J in the Bennett Supreme Court proceedings, on 6 December 2015 the respondents made the following further submissions: 1. Hidden J was in error in construing section 5(1)(a) of the RP and deciding whether the Bennetts occupied the site as their principal place of residence was to be determined by reference to the text of the agreement with the appellant, rather than by reference to the evidence as to the circumstances at the time they entered into the agreement; 2. Hidden J did not deal with the position of the Bennetts in March 2008 being when they first occupied their site; 3. the conclusion of Hidden J in respect of the "movable dwelling" which was already on site was incorrect having regard to the legislation which requires such movable dwelling to be installed on the site by the occupant and left there for the duration of the tenancy; 4. actions of the appellant in previous proceedings and decisions in those proceedings were inconsistent with the finding that the appellant did not consent to the Bennetts occupying their site as their principal place of residence;
Dr Martin reiterated his submission that an estoppel arose. In this regard he also referred to the High Court decision of Commonwealth v Verwayen (1990) CLR 394.
In relation to the 2012 Consent Orders made in connection with the rent increase, the respondents submit that "order 3" is not in fact an order but only a notation of the Tribunal. Further, the respondents submit that what is written beside item 3 could not in fact be an order and should not be construed to be an order for the reason that the Tribunal had no power to make an order which has effect for a period exceeding 12 months, such limitation being imposed by s 58(4) of the RP Act.
The respondents also submitted that to construe item 3 in the orders as notice under the Act would, in effect, prevent any application to challenge the order being made having regard to the 30 day limit applicable for a resident to make an application upon receipt of notice. In effect, the residents assert that such an interpretation would require them to apply to the Tribunal one year before the rent increase was to start.

Other matters subsequent to hearing of appeal

Subsequent to the hearing of the appeal, the Appeal Panel was advised that the appellant and all respondents who are recorded in Exhibit A as having agreements under the RP Act other than Mr Craig Douglas (AP 15/15601) had settled their disputes and had agreed that the appeals be withdrawn and dismissed. This settlement arose in consequence of the parties conciliating subsequent claims in the Consumer and Commercial Division (CC Division).
The Appeal Panel was provided with orders made by the Deputy President of the CC Division on 20 August 2015 which attached the parties' agreement (Consent Orders and Agreement).
The Appeal Panel will therefore make orders that the appeals identified in the Consent Order and Agreement be dismissed under s 55(1)(a) of the NCAT Act. For convenience, the appeals to which these orders apply are those marked "settled" in Annexure A to these reasons.
Also, the Appeal Panel became aware that the respondent in appeal AP 14/55554 was incorrectly named and the parties to that appeal have consented to the Tribunal making an order to amend the name of the respondents to Henry Barrett Brown also known as Barry Brown and Susan Brown. The Appeal Panel will make this order.
Finally, subsequent to the hearing of the appeal, the respondents advised that on 11 September 2015 the Bennetts filed an appeal in the Court of Appeal in respect of the decision of Hidden J in the Bennett Supreme Court proceedings.
The respondents contend that this appeal deprives the Appeal Panel of jurisdiction to hear and determine the present appeal by reason of clause 5 of Schedule 4 of the Civil and Administrative Tribunal Act, 2013 (NCAT Act).

Consideration

These appeals relate to proceedings originally commenced by the respondents under ss 55 and 56 of the RP Act seeking orders in respect of rent increases.
The appellant only seeks to appeal on questions of law. Leave is not required: see s 80(2)(b) of the NCAT Act.
The first matter to consider is whether the Tribunal had jurisdiction under the RP Act to deal with those respondents whose agreement was in the form of an Occupation Agreement.
A determination of this issue requires a consideration of: 1. the legislative regime and the interaction of the RP Act and the Holiday Parks Act; 2. the terms of the agreements between the appellant and each of the respondents who had occupation agreements; and 3. in the case of the Bennetts, whether the appeal should be allowed and the orders set aside in light of the conclusion of Hidden J in the Bennett Supreme Court Proceedings.
The second matter to consider relates to the orders made in respect of rent increases for those respondents with residential tenancy agreements who have not otherwise settled their appeals. The appellant challenges the order for refund and the order that rent was excessive.
The third matter to consider relates to the application of clause 5(7) of the NCAT Act to the proceedings at first instance and on appeal. This clause operates to deprive the Tribunal of jurisdiction to hear and determine an issue in proceedings already before another court.

Jurisdictional Issue

It is convenient to first examine the relevant legislative regime and then to review the particular respondents' position in light of the legislation.
Jurisdiction - legislative regime
Sections 55 and 56 of the RP Act are in the following terms: 55 Resident may apply for an order that a rent increase is excessive A resident under a residential tenancy agreement may apply to the Tribunal for an order declaring that a rent increase is excessive not later than 30 days: (a) after being given notice of the rent increase, or (b) after being given notice of a rent increase payable under a proposed residential tenancy agreement for residential premises already occupied by the resident. 56 Resident may apply for an order that rent is excessive (1) A resident under a residential tenancy agreement may, at any time, apply to the Tribunal for an order declaring that the rent payable under a residential tenancy agreement or a proposed residential tenancy agreement for residential premises already occupied by the resident is excessive, having regard to the reduction or withdrawal by the park owner of any goods, services or facilities provided with the premises.
As is evident from each of those sections, the person who is entitled to apply to the Tribunal for an order is "a resident under a residential tenancy agreement".
Both parties appear to accept that the issue raised was one of jurisdiction. In this regard it is necessary to construe the relevant legislation and determine the existence of the jurisdictional facts that enliven jurisdiction: see Trives v Hornsby Shire Council [2015] NSWCA 158 at [9]-[11].
A residential tenancy agreement is defined in s 3 of the RP Act: 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.
A resident is defined in s 3(1) of the RP Act as follows: resident means the person who has the right to occupy residential premises under a residential tenancy agreement, and includes the person's heirs, executors, administrators and assigns.
However, the RP Act does not apply to all residential tenancy agreements that fall within the definition referred to above. Rather, the application of the RP Act is limited to agreements of the type set out in s 5 which 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. (1A) A person does not cease to occupy residential premises as the person's principal place of residence by reason only that the person is absent from the premises for the purpose of receiving medical, nursing or domestic care. (2) This Act applies whether the relevant residential tenancy agreement was entered into before or after the commencement of this section, unless a particular provision provides otherwise. (3) Where this Act applies to a residential tenancy agreement, it so applies despite the terms of any such residential tenancy agreement or any other contract, agreement or arrangement, whether made before or after the commencement of this section."
Also, s 6A of the RP Act provides that the RP Act does not apply to long-term casual occupation. Section 6A is in the following terms: 6A Act does not apply to long-term casual occupation (1) This Act does not apply to an agreement or to a site to which the Holiday Parks (Long-term Casual Occupation) Act 2002 applies. (2) However: (a) park rules can be made under Part 6 of this Act in relation to a residential park that contains sites occupied under occupation agreements to which the Holiday Parks (Long-term Casual Occupation) Act 2002 applies, and (b) park rules made under Part 6 of this Act apply to an occupation agreement or to a site to which the Holiday Parks (Long-term Casual Occupation) Act 2002 applies, to the extent provided by that Act.
Section 16A of the RP Act provides that it is an offence for a park owner to knowingly enter into a residential tenancy agreement that is not in writing or that is only partly in writing. However, the fact that the residential tenancy agreement is not in writing does not of itself mean the agreement is void or voidable: see s 16A(1) and (2).
Further, a residential tenancy agreement under the RP Act that is not in writing is taken to include the standard terms as set out in the standard form or as might be prescribed by the Regulations: see s 16A(3). In addition, a residential tenancy agreement that is not in writing may include additional terms only if they are consistent with the Act and every other Act and with the standard terms referred to in s 16A(3): see s 16A(4).
The Holiday Parks Act applies to occupants who have Occupation Agreements and pay an occupation fee. An occupant, occupation agreement and occupation fee is defined in s 3(1) of the Holiday Park Act as follows: occupant means a person who has the right to occupy a site under an occupation agreement. occupation agreement means any agreement under which a person grants to another person for value a right to occupy a site: (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. occupation fee means an amount payable under an occupation agreement by an occupant in respect of a period of the occupancy.
Sections 5 and 6 of the Holiday Park Act set out the types of agreement to which the Act does and does not apply. These sections provide: 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. (2) This Act applies whether the relevant occupation agreement was entered into before or after the commencement of this section, unless a particular provision provides otherwise. (3) Subject to sections 14 and 16, if this Act applies to an occupation agreement, it so applies despite the terms of any such occupation agreement or any other contract, agreement or arrangement, whether made before or after the commencement of this section." 6 Agreements and sites to which Act does not apply (1) This Act does not apply to an occupation agreement of a class prescribed by the regulations for the purposes of this subsection. (2) This Act does not apply to: (a) any site ordinarily used or intended to be used for tourist arrangements or other holiday purposes other than long-term casual occupation of the kind described in section 5 (1), or (b) any site, or part of a site, prescribed by the regulations for the purposes of this paragraph.
No sites are prescribed for the purpose of s 6(2) of the Holiday Parks Act.
In addition, s 7 of the Holiday Parks Act provides that the RP Act has no application. Section 7 states: 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.
Relevantly, no jurisdiction is given to the Tribunal to resolve disputes that might arise in relation to the increase of an occupation fee payable under an Occupation Agreement.
Section 15 of the Holiday Parks Act provides for an offence by the park owner who knowingly enters into an Occupation Agreement not in writing or that is only partly in writing. However: 1. the fact that an Occupation Agreement is not in writing does not mean that the agreement is void or voidable: see s 15(1) and (2) of the Holiday Parks Act; and 2. where an Occupation Agreement is not in writing it is taken to have various standard terms and may have additional terms not in writing provided they are consistent with the Holiday Parks Act and the standard terms provided for in the Act: see s 15(3) and (4).
As is evident from the above legislation, an agreement to which the RP Act applies is one where: 1. There is a residential site or moveable dwelling on a residential site; 2. The resident occupies the residential site as the resident's principal place of residence; and 3. In the case of an agreement entered into after commencement of the 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.
However, the RP Act does not apply to an agreement to which the Holiday Parks Act applies.
On the other hand, the Holiday Parks Act applies to an agreement in relation to a site: 1. Entered into by an occupant who has a principal place of residence somewhere other than the site; 2. 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; 3. 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 4. Under which: 1. The occupant agrees with the consent of the park owner, to be an occupant on a casual basis for at least 12 months; or 2. The occupant has with the consent of the park owner, been an occupant on a casual basis for at least 12 months.
While the definitions of tenancy agreements and occupation agreements have similar features, the starting point of any analysis is: 1. Whether or not the particular agreement is subject to the Holiday Parks Act; and 2. Whether the fact a person occupies the site as their principal place of residence, of itself, is sufficient to remove an agreement from the operation of the Holiday Parks Act which thereby becomes subject to the operation of the RP Act.
As indicated above, the operation of the RP Act where the parties had signed an occupation agreement under the Holiday Parks Act was considered by Hidden J in a dispute between the appellant and two of the respondents to these appeals, the Bennetts. They occupy site 35 at the park. In that decision His Honour examined the provisions of s 5(1) of the Holiday Parks Act.
Hidden J did so against a factual background that the Bennetts commenced occupation of the site in March 2008 and signed a written occupation agreement in April 2008: see Hidden J's reasons at [15] recording the unchallenged findings of the Tribunal that the Bennetts: 1. Occupied the site from March 2008; and 2. Entered into a written agreement pursuant to the Holiday Parks Act in April 2008.
At paragraph 19 of his reasons, Hidden J also recorded that the Tribunal found the Bennetts did not have their principal place of residence somewhere other than the site. This finding would seem to indicate that the requirements of s 5(1) of the Holiday Parks Act had not been met and therefore the occupation agreement in that case would not be an agreement to which the Holiday Parks Act applies.
However Hidden J determined the written occupation agreement was an agreement to which the Holiday Parks Act applied.
At [30] of His Honour's reasons, Hidden J said: 30 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.
Having previously referred to the CTTT decision in Hayward v Hastings Riverside Co Pty Ltd (General) [2008] NSWCTTT 1002 (which related to a decision in which the CTTT found an agreement was not regulated by the RP Act because the applicants never intended to occupy the premise as their principal place of residence) His Honour continued at [31] - [32]: 31 The decision in Hayward turned upon the fact that the bargain which the parties made, in light of the circumstances known to them, did not comply with the (RP 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 (Holiday Parks Act), as found by the Tribunal. 32 I accept Mr Eastmond's submission as to the conformity of that agreement with the prerequisites of s 5(1) of the (Holiday Parks Act), including his argument as to the effect of the prerequisite under s(1)(b) concerning the installation of the occupant's moveable dwelling. If the Bennetts occupied the dwelling as their permanent residence, inconsistently with that agreement, they were in breach of it. As Mr Eastmond put 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.
It is unclear from the above passages whether His Honour concluded: 1. on the proper construction of s 5(1) of the Holiday Park Act, that s 5(1) excludes the operation of the Holiday Parks Act only in circumstances where the Bennetts did not have their principal place of residence somewhere other than the site and the park operation knew of this fact; or 2. that the finding of fact of the Tribunal recorded at paragraph [19] that the Bennetts did not have their principal place of residence somewhere other than the site at the date they signed the Occupation Agreement in April 2008 was an incorrect finding by reference to the matters set out at [30] of His Honours reasons or was irrelevant.
It is also unclear whether Hidden J considered there was an agreement in the period March 2008 until the written Occupation Agreement was signed in April 2008 and, if so, whether the rights granted under that agreement permitted occupation of the site by the Bennetts as their principal place of residence during this period.
The problem with the first interpretation of His Honour's reasons is that there is no mention of knowledge of the park operator in s 5(1)(a) of the Holiday Parks Act whereas s 5(1)(d) only regulates an arrangement where either: 1. The occupant agrees to be an occupier on a casual basis for at least 12 months; or 2. the occupant has occupied the site on a casual basis for at least 12 months with the consent of the park operator.
Further, this interpretation would suggest that some knowledge is required unless the Holiday Parks Act is to be construed as excluding altogether those people who do not have a principal place of residence somewhere else at the time the parties entered into the written occupation agreement. In that case neither the Holiday Parks Act nor the RP Act would apply, the latter Act requiring the approval of the park operator to occupation as the principal place of residence.
The consequence of this interpretation is that there would be a hiatus in the legislative scheme under the Holiday Parks Act and RP Act which operate in respect of those who reside in holiday parks or residential parks other than for the purpose of holidays or recreation.
For the reasons that follow, this interpretation of Hidden J's reasons should be rejected.
The answer to the apparent hiatus in the legislative scheme is found in the words of s 5(1)(a) of the Holiday Parks Act which refers to an occupation agreement in relation to a site "entered into by an occupant who has a principal place of residence somewhere other than the site" (emphasis added). These words contemplate a temporal element, namely where does the occupant have a principal place of residence at the point in time when the occupation "is entered into by an occupant".
For a person not already occupying a site, at the time they enter an agreement their principal place of residence must be somewhere else, unless they have received the consent of the park owner to lawfully occupy the site as their principal place of residence.
For those persons already occupying a site, they cannot lawfully occupy the site as their principal place of residence if they have an occupation agreement restricting the time they can live at the site in a manner consistent with the Holiday Parks Act. On the other hand, if they have consent of the park operator to occupy the site as their principal place of residence then: 1. The provisions of s 5(1)(d) of the Holiday Parks Act relating to occupation on a casual basis will not be satisfied; 2. The consent and occupation as the principal place of residence would satisfy the requirements of s 5(1) of the RP Act; and 3. The agreement permitting occupation would be a residential tenancy agreement under the RP Act.
Insofar as a person originally occupied a site on a casual basis under an occupation agreement to which the Holiday Parks Act applies, sought to "convert it unilaterally into an agreement of a different kind", this could not occur. Rather, the usual principles of contract would apply. That is, there would need to be a variation of the occupation agreement by the park operator agreeing to remove the terms limiting occupation on a casual basis and, instead, agreeing to permit occupation as a principal place of residence.
Alternatively, it may also be possible for a park operator to be estopped from denying that consent to occupy the site as the principal place of residence has been given. Of course, this will require a factual and legal enquiry, including a consideration of all the circumstances at the time the occupation agreement was entered into and any relevant conduct afterwards.
As indicated above, Hidden J did not set out his analysis of the circumstances of how the Bennetts first occupied the site. However it is clear that he concluded there was no residential tenancy agreement under the RP Act. It must follow from his reasons and the provisions of the Holidays Parks Act and the RP Act that His Honour concluded that: 1. any existing agreement in the period March to April 2008 did not permit occupancy of the site as the Bennetts' principal place of agreement; or 2. because no consent had been given to occupy the site as the Bennetts' principal place of residence and an occupation agreement had been subsequently signed, it should be inferred that the parties had intended to enter an occupation agreement at the time occupation of the site was first permitted; and 3. even if there was no agreement in writing in March 2008, nonetheless the provisions of s 15 of the Holiday Parks Act apply so as to import the standard terms required by the Holiday Parks Act.
In this way, and consistent with Hidden J's reasons, no "violence" would be done to the operation of the legislation. Further, the fact the Bennetts occupied the site as their principal place of residence at the time the written occupation agreement was signed is an irrelevant consideration. It was therefore unnecessary for Hidden J to resolve this matter, other than by concluding that a party cannot vary an occupation agreement "unilaterally into an agreement of a different kind": Hidden J at [32].

Jurisdiction - respondents with written Occupation Agreements

The application of this analysis and a determination of the issue raised on these appeals requires an examination of the terms of the Occupation Agreement entered into by each of the respondents to the appeal.
For the purpose of deciding the present appeals, it will not be necessary to examine every individual agreement which have different commencement dates, different occupation fees, and, of course, relate to different sites. It will be sufficient to examine the standard terms of these agreements which are to the same effect and some factual matters that are common ground.
The following matters are common ground in all appeals for those with Occupation Agreements: 1. Each of the Respondents signed a standard form Occupation Agreement entitled: 2. "Occupation Agreement 3. Holiday Parks 4. (Long-term Casual Occupation) Act 2002" 5. Schedule 1 for each Occupation Agreement provides in respect of clauses 45.1 and 45.2 respectively that: 1. the maximum use of the site by each occupant is limited to 180 days in any 12 month period (whether continuous or broken); 2. the maximum permitted period for continuous stay is limited to 28 consecutive days. 1. with the exception of Ms Markwell, the occupier of site 136, when the proceedings had been commenced, all of the occupants had been occupants for at least 12 months (see Schedule to these reasons setting out dates of Occupation Agreements); 2. none of the parties contended that the park owner had not consented to them occupying their respective sites, the only issue of consent relating to whether the operator at any time consented to each respondent occupying their respective site as their principal place of residence.
In the case of Ms Markwell, her agreement was for a period greater than 12 months and the park owner, had at least, consented to her occupying the site for a period of at least 12 months and therefore the provisions of s 5(d)(i) were satisfied in her case.
Clause 8 provides that occupation fees are payable as set out in Schedule 1. Fee increases are regulated by clause 15 of the standard conditions which prevents an increase of the occupation fees during a fixed term (subject to an exception if the consumer price index or any statutory charge, like rates or land tax, increase by at least 5%) and in all other cases the park owner must give 30 days written notice if the fee is increased.
As referred to in the appellant's submissions, cl 45 of each of the Occupation Agreements is in the following terms: 45 Occupation of the Site The occupant agrees: 45.1. during the course of a year, not to use the site for more than the number of nights set out in Schedule 1. 45.2. not to use the site for any continuous period greater than the number of nights set out in Schedule 1 except with the prior permission of the park owner. 45.3. if the site is occupied for a period greater than the number of nights permitted under clause 45.2 to pay the occupation fee set out in Schedule 1.
Clauses 47.1 and 47.9 provide: 47 Installation and Use of Moveable Dwelling Unit The occupant agrees: 47.1 to install any moveable dwelling and any additions to the site in the location and in the manner and to the standards as directed by the park owner; … 47.9 not to use, or permit the site to be used as a principal place of residence
It was not suggested in the appeal that the terms of the written occupation agreement are inconsistent with or not in conformance with the provision of the Holiday Parks Act. Further, it was not suggested that the terms of the standard form agreement permitted the occupation of any site to which it applied as the occupier's principal place of residence.
The Tribunal concluded at [10] of the Decision that none of these occupation agreements was regulated by the Holiday Park Act because: 1. The difference between the Holiday Parks Act and the Residential Parks Act is the location of a particular resident's place of residence; 2. The residents have not acted in any other manner than as permanent residents of the park and their relationship with the park owner "has been consistent with the relationship provided under the Residential Parks Act"; and 3. Each of the residents who have occupation agreements "have their principal place of residence in the park and are therefore under the Residential Parks Act 1998".
In reaching this conclusion the Tribunal made the following findings: 1. No residents who had an occupation agreements had a principal place of residence other than at the park: Decision at [3]; 2. Some residents had received rent assistance on the basis that the site they occupied in the park was their principal place of residence although the park owner denied the residents had presented forms to it for them to apply to CentreLink for rental assistance: Decision at [3]; and 3. All residents had occupied their respective sites continuously since they commenced occupation and stayed for more than 180 days in a twelve month period: Decision at [3]; 4. The park owner has not given approval in writing to any resident to occupy their site on a permanent basis but has not sought to enforce provisions of the Occupation Agreement, particularly when aware that the sites were occupied for more than 180 days of a 12 month period: Decision at [9]; 5. The park owner has not sought to claim an occupation fee for the overstay period but continued to collect site fees: Decision at [9]; 6. The park owner is well aware of the period of time people occupy their sites: Decision at [9]; 7. The park owner has dealt with all residents as if they were under the RP Act: Decision at [9];
The Tribunal also recorded that all of the residents conceded that they were not given approval by the park owner to occupy their site as a principal place of residence: Decision at [3];
The Tribunal then concluded that the RP Act (and not the Holiday Parks Act) regulated the respondents' relationship with the appellant and gave jurisdiction to the Tribunal to make orders in connection with fee increases notified by the appellant because the respondents had their principal place of residence at their respective sites and that they have not acted in a manner other than as residents consistent with the RP Act.
In our opinion the Tribunal was incorrect in so far as the Tribunal concluded that each respondent who had signed a written Occupation Agreement was always a tenant under a residential tenancy agreement to which the RP Act applies.
This is because: 1. the RP Act does not apply to an Occupation Agreement to which the Holiday Parks Act applies: see s 7 of the Holiday Parks Act; and 2. an agreement to which the RP Act applies is one satisfying the requirements of s 5 of the RP Act.
In our opinion, the written Occupation Agreements, if they have not been varied, are agreements to which the Holidays Parks Act applies and are not residential tenancy agreements under the RP Act. The reasons for this view are as follows.
Firstly, as required by s 5(1) of the Holiday Parks Act, the written Occupation Agreements provide for: 1. An occupant to install their own moveable dwelling; see cl 47.1; 2. The right to occupy the site which is limited to no more than 180 days in any 12 month period (whether continuous or broken): see clauses 45.1 and 45.2; and 3. Occupation on a casual basis only, not as a principal place of residence: see clause 45.1, 45.2 and 47.9.
Secondly, the conclusion that a resident has their principal place of residence at the park is a necessary but not sufficient fact to establish that their right of occupation is regulated by the RP Act.
As indicated above, s 5(1) of the RP Act sets out the applicable criteria. Section 5(1)(b) requires that a resident in fact occupies the premises as their principal place of residence for the RP Act to apply. Therefore the appellant's submission that the Tribunal was in error in receiving evidence on the issue of what was the principal place of residence of each respondent should be rejected.
However, as made clear by the use of the word "and" at the end of s 5(1)(b), this is not sufficient. There must also be "approval of the park owner" for the resident to occupy the premises as their principal place of residence: see s 5(1)(c).
The reasons provided by the Tribunal do not identify or analyse the features of the agreement between the appellant and each of the respondents to determine whether there has been an approval from the park owner to occupy the premises as the principal place of residence as set out in s 5(1)(c) of the RP Act. Indeed, there is no evidence to support the view that such consent was given at the time each of the written Occupation Agreements were signed.
Thirdly, and in any event, the standard form of agreement which each respondent accepted they signed expressly prohibits occupation by each respondent as their principal place of residence.
As Hidden J found in the case of the Bennetts, the fact that a respondent has occupied the site as their principal place of residence does not mean the occupation agreement can be unilaterally varied.
Further, there is no basis to imply consent insofar as the right of occupancy is governed by the terms of the written agreement as it would be contrary to the express written terms of the signed agreements: see eg Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 377.
Finally on this point, while the respondents submitted that the "appellant has a history of wilfully providing incorrect agreements to residents who occupy their sites as their principal place of residence, on the mistaken assumption that these papers override the statutory requirements for Residential Site Agreements issued under the Residential Parks Act 1998": 1. there is no finding by the Tribunal to this effect; 2. there is no evidence before the Appeal Panel to support this submission; and 3. the submission ignores the undisputed fact that each of the residents in fact signed the written Occupation Agreements.
Consequently, unless each of the agreement has been varied after they were signed or circumstances giving rise to an estoppel exist, the conduct of the respondents in occupying their sites as their principal place of residence is no more than a breach of their respective Occupation Agreements.
A variation can be in writing, oral or it might be inferred. A written or oral variation must satisfy the usual requirements in respect to the formation of a contract: see eg Black v NSW Land and Housing Corporation [2014] NSWCATAP 113 at [15]. A variation may operate "to bring an end to the first contract and replace it with the second," or "leave the first contract standing, subject to the alteration": see FCT v Sara Lee Household & Body Care (Australia) Pty Ltd (2000) 172 ALR 346 at 350 [22]
Cases in which the Court has inferred a contract include Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd [1988] 14 NSWLR 523 and Integrated Computer Services Pty Ltd v Digital Equipment Corporation (Australia) Pty Ltd [1988] 5 BPR 11, 110.
In the latter case, McHugh JA said at [16]: It is often difficult to fit a commercial arrangement into the common lawyers' analysis of a contractual arrangement. Commercial discussions are often too unrefined to fit easily into the slots of "offer", "acceptance", "consideration" and "intention to create a legal relationship" which are the benchmarks of the contract of classical theory. In classical theory, the typical contract is a bilateral one and consists of an exchange of promises by means of an offer and its acceptance together with an intention to create a binding legal relationship. cf Atiyah, "Contracts, Promises and the Law of Obligations" 94 Law Quarterly Review at 194. A bilateral contract of this type exists independently of and indeed precedes what the parties do. Consequently, it is an error "to suppose that merely because something has been done then there is therefore some contract in existence which has thereby been executed" : Howard, " Contract, Reliance and Business Transactions" [1987] Journal of Business Law at 127. Nevertheless, a contract may be inferred from the acts and conduct of parties as well as or in the absence of their words: Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (Court of Appeal) (11/11/88) . The question in this class of case is whether the conduct of the parties viewed in the light of the surrounding circumstances shows a tacit understanding or agreement. The conduct of the parties, however, must be capable of proving all the essential elements of an express contract: cf Baltimore and Ohio RR Co v US 261 US 592 (1923); Fincke v US 675 F2d 289 (1982). Care must also be taken not to infer anterior promises from conduct which represents no more than an adjustment of their relationship in the light of changing circumstances.
His Honour went on to say at [18]: Moreover, in an ongoing relationship, it is not always easy to point to the precise moment when the legal criteria of a contract have been fulfilled. Agreements concerning terms and conditions which might be too uncertain or too illusory to enforce at a particular time in the relationship may by reason of the parties' subsequent conduct become sufficiently specific to give rise to legal rights and duties. In a dynamic commercial relationship new terms will be added or will supersede older terms. It is necessary therefore to look at the whole relationship and not only at what was said and done when the relationship was first formed.
Integrated Computer Services was considered by the New South Wales Court of Appeal in Pobjie Agencies v Vinidex Tubemakers [2000] NSWCA 105. In that case, Mason P, with whom Meagher and Handley JA agreed, provided the reasons of the Court.
In Pobjie the Court of Appeal was considering whether or not a course of dealing between business entities could provide sufficient evidence to infer an intention to contract even though there was no express written or oral communication to this effect. The Court concluded at [34]: The conduct of the parties from 1992 onwards and the omissions made by Mr Pobjie, show that there was a common understanding that (Pobjie Agencies) would continue to remain the party primarily liable to (Vinitex Tubemakers) for goods sold and delivered after Insulboard came on the scene.
In the present case a right to occupy had been originally granted by the appellant to each of the respondents pursuant to the written Occupation Agreements to which we have referred. However, the Tribunal found at [9] that: (The residents) have occupied the sites for more than 180 days in a twelve month period. The park owner has dealt with these residents as if they were under the (RP) Act and has given notices of rent increase in accordance with the (RP) Act.
The Tribunal also found at [9] that the park owner "was aware that the sites were occupied for more than 180 days of a 12 month period".
In our opinion, these general findings suggests that there was evidence before the Tribunal concerning a course of conduct between the appellant and each of the respondents who had written Occupation Agreements and that, at some point in time after the written agreements were signed, the parties changed the manner in which they dealt with each other. In this regard part of that evidence appears to have included the 2012 Consent Orders and the apparent payment of "rent" thereafter by the respondents. Indeed reference was made in submissions to other proceedings between the parties concerning increases in the amounts payable by the particular respondents in connection with occupation of their sites.
The appellant referred the Appeal Panel to clause 65 of the written Occupation Agreements and submitted the terms of any agreement were those contained in the written agreement. In effect, the appellant submitted that the written agreements could only be varied in writing.
Clause 65 provides: 65. Whole Agreement 65.1. This agreement, except as amended in writing according to the agreement or the Holiday Parks (Long-term Casual Accommodation) Act 2002 and signed by both the park owner and the operator, comprises the whole agreement between the park operator and the occupant. 65. Except as provided by law, neither the park owner nor the occupant is entitled to rely on oral representation or any implied condition in determining the respective rights and obligations of both the resident and the park owner under the agreement.
In our view, this clause would not operate to prevent a subsequent variation. At best, clause 65 may operate to prevent a party relying on things said and done but not recorded in writing at the time the written Occupation Agreements were signed. However clause 65 would not prevent the parties agreeing by express or inferred agreement, to vary or terminate the written Occupation Agreement under the Holiday Parks Act and substitute it with a residential tenancy agreement under the RP Act.
Further, while the written Occupation Agreement provides for circumstances by which each party may terminate the agreement: see Part 7, no provision of the written Occupation Agreements or the Holiday Parks Act prevents the parties by mutual consent from effecting a termination by oral agreement or varying the agreement so as to alter the rights of occupation from that of casual occupation to that of occupation as a person's principal place of residence.
Finally, as indicated above, while residential tenancy agreements under the RP Act are required to be in writing, the failure to sign a written agreement does not render the oral agreement unenforceable for either an occupation agreement or a residential tenancy agreement under the respective Acts: see s 15 Holiday Parks Act and s 16 RP Act respectively.
In this regard, and unlike the position which Hidden J dealt with in the Bennett Supreme Court Proceedings, the findings of the Tribunal in respect of the present appeals suggest that at some time after each of the respondents had signed the written Occupation Agreements: 1. Gennacker knew each of the respondents was in fact occupying their particular sites as their principal place of residence; 2. thereafter consented to such occupation for a period in excess of 180 days in any twelve month period; 3. permitted continuous stays in excess of 28 consecutive days; and 4. approved the occupation of particular sites as the relevant respondent's principal place of residence.
The reasons also suggest that the appellant sought to increase rent payable by serving notice of rent increases as required by and under the provisions of the RP Act. Again, this is conduct suggesting that the manner in which the parties dealt with each other had changed by mutual assent and that thereafter the respective respondents had paid rent.
Further, this conduct, the participation by the appellant in the earlier proceedings, the determination made in the earlier proceedings and the consent orders made may give rise to an issue estoppel or res judicata or may otherwise operate to estop the appellant from denying that each of the respondents occupy their respective sites pursuant to residential tenancy agreements to which the RP Act applies.
While the appellant asserted that estoppel was not raised as an issue before the Tribunal at first instance, it is clear that at least the earlier proceedings RP 12/09297 (in which the 2012 Consent Orders were made) and the effect of those orders was an issue which the Tribunal was required to consider in reaching its decision: see Decision [11]. It is also clear that the Tribunal was considering a course of conduct by the appellant whom the Tribunal found had dealt with the respondents "as if they were under the (RP) Act and has given notices of rent increase in accordance with the (RP) Act": see Decision [9].
While the appellant submitted that an issue estoppel or res judicata could not arise in the present circumstances, we do not accept this submission.
The principles applicable are set out by Herron J in Gibbs v McCorquodale (1950) 67 WN (NSW) 169, who said at 170-171: To constitute a res judicata, there must be a judicial decision pronounced by a judicial Tribunal. It must emanate from a judicial Tribunal in the exercise of a judicial function. A judicial Tribunal is one which exercises judicial functions by force of, inter-alia, the common law or statute. It may be invested with permanent jurisdiction to determine all causes of a certain class as and when submitted, or it may be clothed by the State (and/or even by the disputants in some cases) with merely temporary authority to adjudicate upon a particular dispute or disputes. It is now well-settled that it is immaterial whether the Tribunal is a court of record or not, or even whether it is known by the name of a Court at all. The test is really not one of court, but jurisdiction:... Statutory tribunals, that is to say, tribunals which owe their existence and jurisdiction entirely to an act of Parliament, are well-known.
At 171, Herron J then quoted a passage from the decision of Jordan CJ in Ex parte Amalgamated Engineering Union (Australian Section); Re Jackson (1937) 38 SR (NSW) 13 who said at 19: But in order that a judicial decision may involve an estoppel as to the matter decided, it is necessary that the Tribunal possess jurisdiction to decide the matter conclusively and for all purposes between the parties, not merely incidentally and for a limited purpose. In the case of a superior Court, difficulties can seldom arise as to whether estoppel attaches to matters which have been expressly or impliedly decided for the purpose of the direct and immediate decision. This is by reason of the rule that 'nothing shall be intended to be out of the jurisdiction of a Superior Court, but that which specially appears to be so,'... But difficulties do occur in the case of subordinate Tribunal's. Where these have been invested with a general they limited jurisdiction, matters incidentally decided are res judicatae if they are comprised within the limits of the general jurisdiction of the tribunal… Where, however, a special jurisdiction is conferred upon a subordinate tribunal to decide any other matters so far as may be necessary for the exercise of the jurisdiction so conferred, is not regarded as investing it with jurisdiction to decide those matters between the parties conclusively and for all purposes. Such matters are collateral to the matter as to which jurisdiction is conferred. In a particular case it may appear from the statute conferring the jurisdiction that it is intended that the Tribunal shall have jurisdiction to determine the collateral matter only provisionally and subject to control by means of the prerogative writs. Or it may appear to be intended that the tribunal is to determine the collateral matters conclusively so far as any controlled by superior Courts is concerned. But unless the intention appears to confer jurisdiction to determine the collateral matters inter partes conclusively and for all purposes… A decision of the Tribunal upon a collateral matter lying outside its special jurisdiction creates no estoppel notwithstanding that the matter was raised and that it was necessary to form an opinion upon it for the purpose of deciding the matter in which the tribunal is invested with special jurisdiction. The reason is that no estoppel can arise from a decision by a tribunal of limited jurisdiction of a matter lying outside its jurisdiction.
In the present case, the jurisdiction of the Tribunal is conferred for the purpose of determining the rights of parties to which the RP Act and Holidays Park Act applies. These determinations bind the parties and the Tribunal has power to determine its jurisdiction. While a decision on jurisdiction may be the subject of judicial review by the Supreme Court of New South Wales, a court otherwise has no jurisdiction to determine an issue before the Tribunal concerning the existence or terms of the contract or any other issue before the Tribunal in the exercise of its jurisdiction: see clause 5 (3) of schedule 4 of the NCAT Act. This embargo on a court's capacity to hear and determine such issues already before the Tribunal only ceases to apply to the extent any application before the Tribunal is withdrawn or dismissed for want of prosecution. That is, the legislator intended that the Tribunal be the determiner of disputes and related issues for which the Tribunal has power to make orders under the RP Act and Holidays Parks Act.
It follows that a determination of the Tribunal of disputes inter partes within its jurisdiction under the RP Act and Holidays Parks Act conclusively and for all purposes binds parties and can give rise to a relevant estoppel or res judicata. In this regard, and subject to the difficulty in determining "what was necessarily decided by the judgement", the principle of res judicata also applies in the case of consent orders: see Chamberlain at 508-509.
Whether or not such an estoppel arises in the present cases requires a consideration of any relevant decision said to give rise to the estoppel and the particular factual circumstances in which the decision was made.
Unfortunately, the reasons for decision provided by the Tribunal are insufficient for the Appeal Panel to determine whether in the case of each respondent rights have been altered or affected by reason of matters occurring after the Occupancy Agreements were signed. In particular: 1. the Appeal Panel does not know what factual findings relating to conduct were made by the Tribunal in each particular respondent's case; 2. The Tribunal does not set out in relation to each of the respondents the relevant facts to which it had regard in concluding that the "park owner" is well aware of the period of time people occupy their sites and has dealt with them "as if they were under the (RP) Act"; 3. The Tribunal does not deal with the issue of whether or not, in the case of each respondent, a finding was made that express or implied consent should be found to have been given by the appellant having regard to the factual matters referred to; and 4. The Tribunal does not relate particular factual findings for each respondent to any identified legal principle by which the relationship recorded in the written Occupation Agreement was varied and if so on what terms.
The obligation to provide reasons and the nature and content of reasons has been dealt with in a number of decisions of the Appeal Panel. Some of the authorities were set out in McPherson v Mace [2015] NSWCATAP 203 at [28] - [29] as follows: 28 In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel said at [49]: One reason why reasons are generally required, notwithstanding a provision such as s 62, is that if reasons for decision are neither sought nor prepared and an appeal or application for leave to appeal is lodged, the findings of fact and legal reasoning of the decision maker at first instance would not be available to the appellate body by way of written reasons. In many instances not having findings of fact and legal reasoning explicitly available may render effectively worthless any appeal right because the appellate body does not have a statement of the findings of fact, the relevant law and explanation of how the law was applied to the facts as found, by the decision maker at first instance. and at [53]: The other basis upon which it has been held that reasons are generally required to be given was recently reiterated by the Court of Appeal in Keith v Gal [2013] NSWCA 339 (per Gleeson JA at [109] as being that failure to provide sufficient reasons promotes 'a sense of grievance' and denies 'both the fact and the appearance of justice having been done', thus working a miscarriage of justice, citing Mifsud v Campbell (1991) 21 NSWLR 725 at 729: Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 442 per Meagher JA. and at [57]: A number of propositions can be derived from the authorities concerning the nature and extent of the duty to give of reasons as follows: (1) notwithstanding that there have been many cases (some of which are collected in De Iacovo v Lacanale (1957) VR 553, at pp 558-559) in which it has been held that it is the duty of a judge, magistrate or other relevant decision maker to state reasons, that does not mean that a decision maker must give his or her reasons in every case. There is no "inflexible rule of universal application" that reasons should be given for judicial decisions. Whilst it is no doubt right to describe the requirement to give reasons as "an incident of the judicial process", it is subject to the qualification that it is a normal but not a universal incident - Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 667 per Gibbs CJ; (2) the content and detail of the reasons for decisions to be provided will vary according to the nature of the jurisdiction which the body in question is exercising and the particular matter the subject of the decision - Wainohu v New South Wales (2011) 243 CLR 181 at [56] per French CJ and Kiefel J; (3) the administration of justice in this regard requires a pragmatic and functional approach to the obligations imposed upon decision makers at first instance - Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [46] per Basten JA; (4) not only is the obligation not universal in nature, but it is variable in its content and whilst transparency in decision-making is an important value, it is not cost free, and may involve separate parameters of quantity and quality - Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48] per Basten JA. 29 To these observations should be added the comments of the observations of the Court of Appeal in Pollard v RRR Corporation Pty Limited [2009] NSWCA 110 conveniently summarised in Moussa Enterprises Pty Ltd v Stanford [2015] NSWCATAP 99 at [30]. In Pollard v RRR Corporation Pty Limited [2009] NSWCA 110 McColl JA, with whom Ipp JA and Bryson AJA agreed, noted the following relevant principles. (1) The giving of adequate reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes "a sense of grievance" and denies "both the fact and the appearance of justice having been done", thus working a miscarriage of justice. (2) The extent and content of reasons will depend upon the particular case under consideration and the matters in issue: (3) While a judge is not obliged to spell out every detail of the process of reasoning to a finding, it is essential to expose the reasons for resolving a point critical to the contest between the parties. (4) The reasons must do justice to the issues posed by the parties' cases. Discharge of this obligation is necessary to enable the parties to identify the basis of the judge's decision and the extent to which their arguments had been understood and accepted. (5) Because a primary judge is bound to state his or her reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Where it is apparent from a judgment that no analysis was made of evidence competing with evidence apparently accepted and no explanation is given in the judgment for rejecting it, it is apparent that the process of fact finding miscarried.
An application of these principles to the present case reveals that the reasons provided by the Tribunal are inadequate. What was required was an examination of the course of conduct applicable to each individual respondent and their respective site. The Decision does not record the particular findings of fact nor apply the facts as found to the relevant legal principles.
As submitted by the appellant, this constitutes an error of law and the appeals should be allowed.
Regrettably, the absence of detailed findings in the Decision and the absence of all relevant documentary and other evidence that may have been before the Tribunal means that the Appeal Panel cannot determine the issues in respect of each of the respondents in the appeal. Rather, it will be necessary to remit the claims for those who had occupation agreements for rehearing. The appropriateness of the course of action to remit the matters is confirmed by the fact that multiple applications were heard on one day, but evidence referable to individual cases was not separately considered.
However, the extent of the remittal should be limited to whether or not each of the written occupation agreements has been varied and/or whether the respondents might be entitled to rely on the principles of estoppel such that the appellant is prevented from denying there was in each case a residential tenancy agreement, to which the Residential Parks Act, 1998 applies, which came into existence after the written occupation agreement was signed.
In the case of the Bennetts, their position is slightly different.
In this regard, there was an earlier determination on the merits by the CTTT concerning whether the Bennetts' Occupation Agreement was regulated by the RP Act or the Holiday Parks Act.
As indicated above, the appellant made an application in 2012 under the Holiday Parks Act seeking an order terminating their agreement on the basis the appellant had given 3 months' notice, being application GEN 12/33565. Hidden J of the Supreme Court has determined that the CTTT was in error in concluding that the Occupation Agreement signed by the Bennetts was void and that the CTTT had no jurisdiction to hear and determine an application for an order for termination and possession under the Holiday Parks Act. Those proceedings have been remitted to the Tribunal under the transitional provisions found in Schedule 1 of the NCAT Act. Those proceedings are still to be determined.
Whether or not an order for termination should be made is a matter to be considered in those proceedings.
However, to the extent there is an issue about whether the appellant and respondents were bound by the Occupation Agreement and whether the Holiday Parks Act applied to that agreement in 2012 when the termination application was made, this was resolved by the Supreme Court in the decision of Hidden J. In this regard, although published after the Tribunal published the Decision, the decision of Hidden J binds the Appeal Panel and is determinative of the relationship between the Bennetts and the appellant in 2012.
However, that is not an end of the matter. This is because at the date the Tribunal determined the present application challenging the rent increase, no order had been made by the Tribunal terminating the Bennetts' Occupation Agreement.
As is apparent, since the proceedings seeking termination were determined by the CTTT, a notice of increase for the amounts payable by the Bennetts to occupy their site has been given by the appellant, such increase being the subject of the present appeal following the Bennetts applying to the Tribunal for an order under the RP Act. The issue of such notice may constitute an act of affirmation of the Occupation Agreement as found by the Supreme Court and therefore deny the appellant of an entitlement to terminate the Occupation Agreement on the basis of any action taken earlier.
Further, it may be that by reason of the dealings between the park owner and the Bennetts after 2012 that the Occupation Agreement has otherwise subsequently been varied or a new agreement entered into with the Bennetts to which the RP Act applies.
On the other hand, it is also unclear from the information we have what evidence the Supreme Court had before it when it determined those proceedings and made orders quashing the CTTT's decision. In this regard it is possible that there may already be a determination of the issue to which we have referred.
These are matters that should be dealt with by the Tribunal on the hearing of the application for termination by the appellant and/or on the remittal of these proceedings.
In any event, the present appeal in the case of the Bennetts should also be allowed.

Jurisdiction - conclusion

Having regard to the above, we conclude: 1. The respondents identified in the attached schedule as having occupation agreements were, at the date of signing those agreements, occupants within the meaning of the Holiday Parks Act and had written agreements to which the Holiday Parks Act applies; 2. The appeals should be allowed and the applications remitted to the Tribunal to determine in accordance with these reasons whether each of the Occupation Agreements with the respondents was varied and/or a new agreement entered into with the park owner so as to permit those respective respondents to occupy their sites as their principal place of residence under a residential tenancy agreement to which the RP Act applies.

Rent increase issues

Having regard to our conclusion in connection with those respondents with Occupation Agreements and by reason of various other respondents having settled their appeals with the appellant, but for one matter it would have been unnecessary to resolve the issues raised in relation to the rent increase.
Not all those who have agreements under the Residential Parks Act (as opposed to Occupation Agreements) have settled their appeals with the appellant. The exception is Mr Craig Douglas, the occupier of site 47. Therefore the Appeal Panel must deal with the rent increase issue also.
The appellant submitted in respect of the rent increase to take effect on 1 April 2013 that: 1. The Tribunal had no power to make an order requiring refund of any overpaid rent and/or erred in concluding that the rent increase was ineffective because notice had been given; 2. The respondents had, in effect, sought to re-litigate the issue of the rent increase which constituted an abuse of process which the Tribunal wrongly permitted; 3. The Tribunal failed to take account of material evidence, namely the consent orders where proper notice had not been given; and 4. Therefore the Tribunal should have dismissed the applications by the respondents because the applications challenging the rent increase were lodged more than twelve months after the relevant notice, contrary to s 55(3) of the RP Act.
Secondly, in respect of rent increases to take effect from 1 April 2014 the appellant also submitted these were out of time as being lodged more than 30 days after the date the particular residents were given notice of the rent increase or the date the resident was given of a rent increase under a proposed residential tenancy agreement for premises already occupied by the resident.

Rent increase for period 1 April 2013 to 31 March 2014

In paragraph 15 of the Decision, the Tribunal concluded that the "order" made on 12 April 2012 in respect of rent increase for the period commencing 1 April 2013 and that what was recorded there was a "notation of what the parties had agreed". The Tribunal also concluded that even if the notation in the consent order had stated the amount of rent for each site, it does not satisfy the requirements of the RP Act because it purported to fix the maximum amount of rent for a period in excess of 12 months. In this regard the Tribunal found that s 53 (1) of the RP Act makes it mandatory for a notice to be issued and that the notice "must include the amount of the increased rent and the date from which the increased rent is payable". The Tribunal also found s 58(4) meant the orders could only apply to a period not exceeding 12 months.
The form of the "order" made by the Tribunal is recorded in paragraph 25 of the appellant's further submissions in reply dated 20 March 2015 in the following terms: The Tribunal notes that the rent payable per week by the applicant for a period of 12 months from 1 April 2013 will increase by a further 3.3%.
The first question is whether or not this statement amounted to an order of the Tribunal or the notation by the Tribunal of an agreement between the parties.
In our opinion, the use of the word "notes" makes clear that the Tribunal was not making an order in connection with the rent payable.
Further, the relevant order making powers of the Tribunal regarding excessive rent increases all rent are found in s 58 (4) of the RP Act. This section provides: 1. the Tribunal may determine that a rent increase or rent is excessive: s 58 (1); 2. if the Tribunal determined a rent increase is excessive, the Tribunal may order that from a day specified by the Tribunal, not being earlier than a day from which the rent increase was payable, that rent must not exceed an amount specified by the Tribunal and may make such other orders as it thinks fit: s 58(2); 3. if the Tribunal determines the rent is excessive having regard to a reduction or withdrawal… of any goods, services or facilities provided with the residential premises, the Tribunal may order that from a day specified by the Tribunal, not being earlier than the date of that reduction or withdrawal, the rent must not exceed an amount specified by the Tribunal and may make such other orders as it thinks fit: s 58(3); 4. an order specifying a maximum amount of rent has effect for such period, not exceeding 12 months, as is specified in the order; s 58(4).
In our view, these order making powers require the Tribunal to fix the amount of rent payable, and an order providing for how the rent is to be calculated is not sufficient for this purpose. Further, the "order" made on 19 April 2012 does not satisfy the requirements of the subsections that require the orders to variously: 1. provide that "rent must not exceed an amount specified": see ss 58(2) and (3); or 2. specify a maximum amount of rent which is not to be exceeded: s 58(4).
Therefore, in our opinion the conclusion of the Tribunal that the matter noted at item 3 of the orders made 19 April 2012 was not an order of the Tribunal in respect of a rent increase for the period commencing 1 April 2013 was correct and this ground of appeal fails.
The second challenge raised in relation to this notation in the orders made on 19 April 2012 was that, insofar as there was an agreement between the parties to increase the rent, the notation amounted to notice and was effective for the purpose of increasing the rent pursuant to s 53 of the RP Act.
In our view this submission should be rejected.
Insofar as the notation constituted an agreement to vary the residential tenancy agreement that was reached to resolve proceedings in 2012, any increase pursuant to that agreement could only be made in the manner required by s 53 of the RP Act, which is part of Division 2. Section 52 of the RP Act provides: 52 Application of Division This Division applies to a rent increase even if the amount of the rent increase, or method for calculating the amount of the increase, is set out in the residential tenancy agreement.
This section contemplates that any rent increase, even if fixed by agreement, is regulated by the Division. Section 53 regulates the manner in which a park owner may increase the rent and sets out the requirements for giving notice of a rent increase
Section 53(1) of the RP Act provides: The rent payable by a resident under a residential tenancy agreement must not be increased except by notice in writing given to the resident specifying the amount of the increased rent (emphasis added) and the day from which the increased rent is payable.
In our opinion the notation does not meet the requirements of s 53(1) because it does not specify the amount of the increased rent. Rather, it only specifies how it is to be calculated.
Section 53(8) of the RP Act provides: A rent increase (including a rent increase permitted under subsection (6) or provided for in any other residential tenancy agreement) is not payable by a resident under a residential tenancy agreement unless the rent is increase in accordance with this section or by an order of the Tribunal.
As indicated above, there was no order of the Tribunal. Consequently, insofar as the appellant purported to increase the rent payable on notice pursuant to s 53, such notice was ineffective.
There is also some doubt as to whether the written agreement amounts to "notice in writing given to the resident" as required by s 53. As made clear by s 52 of the RP Act, the requirements of s 53 apply to an agreement "even if the amount of the rent increase … is set out in the residential tenancy agreement". This language suggests that even where there is agreement for a future increase of rent, written notice must be given by the park owner to the respondent. This argument was not raised on the appeal and having regard to the view we have taken, it is unnecessary to determine this point.
The appellant also says that the application for refund was not lodged in time. The appellant relies on s 54 of the RP Act which provides: 54 Tribunal may make orders for refund of overpaid rent where rent increase was not properly notified (1) A resident under a residential tenancy agreement may apply to the Tribunal for an order directing the refund of overpaid rent on the ground that the rent increase was not properly notified. (2) The Tribunal may make an order directing the refund. (3) An application under this section must be lodged no later than 12 months after the relevant notice was given to the resident.
The applications by the respondents, to which these orders relate, were lodged on 20 February 2014: see Decision [17]. In effect, the appellant says an application for an order under s 54 should have been commenced within 12 months of 19 April 2012, being the date "notice" was given of the rent increase.
As we are found, the "notice" was not in accordance with s 53 (1) of the RP Act. No other document has been identified by the parties as constituting notice for the purpose of s 53 of the RP Act. Subsection 54 (3) requires any application for a refund to be lodged not later than 12 months after the relevant notice was given. It follows that the time for lodging the application by each of the respondent was not later than 12 months after 19 April 2012, namely 19 April 2013.
The appellant submits that the consequence of the late lodgement means that "the Tribunal erred in law by considering and determining the applications that were effectively a nullity".
In our view, the applications were not a nullity. The right to apply to the Tribunal is found in s 54(1) of the RP Act. While there is a time limit of 12 months expressed in s 54(3) of the RP Act, the language of the legislation does not, by reason of the time limit, remove jurisdiction of the Tribunal under s 54(1) if the application is not made in time. This position is to be contrasted with the provisions of other legislation such as the Home Building Act, 1989 (HB Act), by which the Tribunal is granted a general jurisdiction, which jurisdiction is expressly limited by reference to the time claims are lodged: see eg HB Act s 48K(2) and following.
Unlike the HB Act, the time limit imposed by s 54(3) may be extended by order of the Tribunal pursuant to s 41 of the NCAT Act. Section 41(1) provides: The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.
Accordingly, insofar as the appellant suggests the proceedings were a "nullity" and should have been dismissed this ground of appeal fails.
Finally, the Appeal Panel notes that the issue of the original applications being made out of time does not appear to have been raised at the hearing. This would have required the parties to be given a chance to adduce any evidence relevant to such an application. As it was not an issue raised at the original hearing and is an issue that would have involved a question of fact, it should not be permitted to be raised on appeal: see Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438.
In any event, the Appeal Panel notes no submissions were made by the appellant to the effect that if the proceedings were out of time, time should not be extended pursuant to s 41 of the NCAT Act.
Accordingly, because the proceedings are not a nullity and, as we have found, an order for refund was properly made, it is sufficient for the Appeal Panel to dismiss this aspect of the appeal in respect of Mr Douglas.

Rent increase for period 1 April 2014 to 31 March 2015

The appellant also challenges the order in favour of Mr Douglas in respect of the rent increase to take effect from 1 April 2014 on the basis that his application was out of time. There is no challenge to the conclusion that the rent increase was excessive.
Again, the basis of the challenge was that the application was made out of time and that the proceedings were "effectively a nullity".
At [17] of the Decision the Tribunal found: The park owner issued a notice of rent increase to the applicants dated 17 January 2014. No challenge was made as to the validity of the notice or the timeframe in which the applications were lodged with the Tribunal. The residents lodged applications with the Tribunal on 20 February 2014 seeking orders; (i) Pursuant to ss 55 and 56 of the Residential Parks Act 1998… that the proposed rent increase is excessive; (ii) Pursuant to s 56 of the Act that the current rent is excessive due to the withdrawal of all reduction of services and facilities; …..
As set out above, an application under s 55 of the RP Act for an order declaring a rent increase is excessive is to be made by a tenant not later than 30 days after: 1. being given notice of the rent increase; or 2. after being given notice of a rent increase payable under a proposed residential tenancy agreement for residential premises already occupied by the resident.
On the other hand, an application under s 56 of the RP Act in connection with the withdrawal of goods, services or facilities may be made "at any time".
It would seem that the Tribunal determined the issue of whether or not the rent was excessive on the basis of both s 55 and s 56 of the RP Act. While not explicit, the Tribunal's reasons at [30] refer to matters which might constitute a withdrawal of services in terms of access to "mushrooms" which appear to contain power outlets which were replaced and locked.
In doing so the Tribunal considered the factors set out in s 57 of the RP Act. Having considered these factors, the Tribunal determined the rent increase proposed by the notice issued 17 January 2014 was excessive.
The Decision states at [17] that the appellant did not challenge the respondents' applications on the basis they were out of time. This statement, recorded in the Decision, was not challenged by the appellant in the appeals.
In determining the application under each of ss 55 and 56, the Tribunal was entitled to have regard to those factors set out in s 57 of the RP Act. That is what occurred and detailed reasons setting out the analysis of the Tribunal and why it determined the rent was excessive are recorded in the Decision at [18] and following.
To the extent this conclusion was a determination of an application under s 56 of the RP Act, it was clearly in time. To the extent this conclusion was a determination of an Application under s 55 of the RP Act, the application was 4 days out of time. However, for the reasons set out above, time could have been extended under s 41 of the NCAT Act.
It follows that insofar as the appellant challenges the order in relation to the rent increase on the basis the application by the respondent was a nullity, the appeal should be dismissed.
While it is not necessary to do so, we should say that having regard to: 1. the delay in the application under s 55 being only 4 days, 2. that application being interrelated to the s 56 application, and 3. the unchallenged findings of the Tribunal that the rent increase was excessive; to the extent necessary we would have extended time for the bringing of the application to challenge the 17 January 2014 rent increase notice.
However, because of the limited grounds of appeal it is sufficient to record that the appeal in respect of order 1, that the rent increase in respect of Mr Douglas of site 47 should not exceed $174.74 for the 12 month period from 1 April 2014, should be dismissed.
Consequently, the appeal in respect of the respondent Mr Douglas is dismissed.

Applicability of Clause 5(7) of Schedule 4 of the NCAT Act

One final matter to deal with in relation to the Bennett Supreme Court proceedings is a submission by the respondents that the Appeal Panel has no jurisdiction to deal with the issue of the Occupation Agreement in respect of the Bennetts.
The Appeal Panel had raised this issue at the original hearing and sought submissions from the parties.
Subsequently, Hidden J delivered his reasons and, more recently, the Bennetts appeal the decision of Hidden J to the Court of Appeal of the Supreme Court of New South Wales (Bennett Court of Appeal proceedings). The Appeal Panel also sought further submissions on this matter.
Two questions arise from these facts. Firstly, whether the Appeal Panel is denied jurisdiction to deal with the issues the subject of the Bennett Supreme Court proceedings. Secondly whether the Appeal Panel is denied jurisdiction to determine the appeal by reason of the Bennett Court of Appeal proceedings.
Parties Submission
In its submissions dated 27 March 2015 the appellant initially said that clause 5 (7) of Schedule 4 of the NCAT Act could only apply to proceedings before the Tribunal at first instance when exercising a Division Function. The appellant submitted that clause 5 (7) did not apply to the appeal as the Appeal Panel was not exercising such a Division function within the meaning of clause 5.
On 7 December 2015, after Hidden J provided his reasons, the appellant made the following submissions:
Where there are proceedings before the Appeal Panel that involved substantially the same issue as a point decided in the Supreme Court proceedings, it would be unfair to the Appellant if the Respondents were permitted to raise the same point again on behalf of the Bennetts, or on behalf of the other Respondents who are parties to occupation agreements: Hunter v Chief Constable of the West Midland Police [1982] AC 529.
The appellant also submitted that "there is also the concern that previously litigated issues are subject to an issue estoppel".
At the same time, the appellant repeated its earlier submission that clause 5 (7) did not apply to the appeal and that the Appeal Panel and jurisdiction to determine the matters before it.
The respondents made the following submissions.
On 2 April 2015 the respondents submitted that the Appeal Panel did have jurisdiction to determine the appeal as the Appeal Panel was not exercising a Division Function. However, following the filing of the Bennett Court of Appeal proceedings, the respondents made the following submission at [16] of the written submissions dated 6 December 2015: It is appropriate to draw the attention of the Members of the Appeal Panel to the sealed copy of the Notice of Grounds of Appeal in case 2015/201229, presently before the NSW Court of Appeal that were provided to the Appeal Panel Registry. The provisions of the Civil and Administrative Tribunal Act 2013 Sch 4 C&C Division Part 5 cl7 are quite clear-the subject of the dispute is pending before the Court of Appeal and on becoming aware of the above proceedings, the Appeal Panel ceases to have jurisdiction to hear or determine the issue. The respondents note that whilst the Appeal Panel is determining AP 14/48780 that is not subject to proceedings in the NSW Court of Appeal, the respondents believe that the decision of Hidden J should have no bearing on the matter before the Appeal Panel whilst the decision of Hidden J is now subject to appeal.
It is unclear from the respondents' submissions what is the relevant issue which the Appeal Panel has no jurisdiction to hear or determine. Further, it is unclear why the respondents submit that the decision of Hidden J has "no bearing on the matter before the Appeal Panel". Lastly, the submissions made on 6 December 2015 are inconsistent with the submission made on 2 April 2015.

Decision on clause 5(7) issue

Notwithstanding this lack of clarity, it is necessary for the Appeal Panel to review the provisions of clause 5 (7) and its relevance to the present appeals.
Clause 5(7) provides: Schedule 4 Consumer and Commercial Division 5 Relationship between Tribunal and courts and other bodies in connection with Division functions …… (7) Effect of pending court proceedings on Tribunal If, at the time when an application is made to the Tribunal for the exercise of a Division function, an issue arising under the application was the subject of a dispute in proceedings pending before a court, the Tribunal, on becoming aware of those proceedings, ceases to have jurisdiction to hear or determine the issue.
A "Division function" means a function of the Tribunal allocated to the Consumer and Commercial Division which, in the present cases includes the resolution of disputes under the RP Act and Holiday Parks Act.
The effect of the clause is to remove the jurisdiction of the Tribunal jurisdiction to determine an issue which is the subject of a dispute in proceedings pending before a court at the time an application was made. This occurs at the point in time the Tribunal becomes aware of the other proceedings. However the clause does not remove from the Tribunal jurisdiction to otherwise determine the proceedings before the Tribunal in which the issue arises. Rather, it operates to remove possible inconsistent determinations inter partes where the same issues are being litigated concurrently in the Tribunal and a court: see Cohen-Hallaleh v Cyril Rosenbaum Synagogue Pty Ltd [2003] NSWSC 395 per Barrett J (as he then was) at [37].
In the case of the Bennett Supreme Court proceedings, it is clear these were commenced in 2013. This was before the Bennetts commenced application RP 14/12231 in respect of the challenge to proposed rent increases, which is the subject of the present appeal proceedings AP 14/55586. Consequently, it is necessary to consider what were the issues for resolution in each proceeding and whether the Tribunal was thereby denied jurisdiction in respect of any determination which it made.
In this regard the fact that the Bennett Supreme Court proceedings were for judicial review does not deny the operation of clause 5(7): cf clause 5(5) which operates to exclude the operation of clause 5(3) where an issue is before the Tribunal in pending proceedings and subsequent proceedings are commenced to challenge the Tribunal's jurisdiction.
In our view the relevant issue common to both proceedings was whether or not the right of the Bennetts to occupy their site at the park was governed by the written Occupation Agreement to which the Holiday Parks Act applies. There is also a common issue concerning the interpretation of the RP Act and Holiday Parks Act and Hidden J's conclusion concerning the effect of the Bennetts' written Occupation Agreement.
Lastly, in relation to the written Occupation Agreement, there is a temporal issue concerning the point in time to which the determination of Hidden J relates. That is, does His Honour's decision as to the legal relationship between the Bennetts determine a position that existed in June 2015 or at some earlier point in time. If the latter, for the reasons expressed above, the issue of variation of the written Occupation Agreement and the consequences of any subsequent conduct may still need to be resolved. In this case, these issues would not be common.
It is quite clear that the issue which we have identified, namely whether the written Occupation Agreement binds the appellant and the Bennetts is "the point on which the parties are in dispute": see Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Limited [2015] NSWSC 289 at [101].
The fact that the issue arose in connection with different applications, namely: 1. the Bennett Supreme Court proceedings relating to an application by the park owner originally determined by the CTTT where the CTTT refused an order for termination of a written Occupation Agreement under the Holiday Parks Act; and 2. the Bennett proceedings in the Tribunal which are the subject of this appeal, relating to an application in the Tribunal by the Bennetts that a rent increase was excessive and that orders should be made under the RP Act, does not mean there were different issues.
As White J said at [104] in Steak Plains Olive Farm, a narrow approach must not be taken to the definition of the relevant issue.
Further, it seems clear that the issue before Hidden J included whether the conduct of the parties up until the date the application for termination of the written Occupation Agreement was dealt with by the Tribunal meant that: 1. consent had been given by the park owner to the Bennetts to occupy their site as their principal place of residence; 2. The written Occupation agreement had been varied or the parties had conducted themselves in a manner inconsistent with that of occupants under the Holiday Parks Act on a casual basis; 3. The park operator knew the Bennetts occupied their sites as their principal place of residence; and 4. the parties relationship was regulated by the RP Act or the Holiday Parks Act. See eg Hidden J at [19], [21], [23], [25], [27], [30] and [32].
Accordingly, in our view cl 5(7) of Schedule 4 of the NCAT Act would apply to exclude the jurisdiction of the Tribunal to determine that issue upon the Tribunal becoming aware of the Bennett Supreme Court proceedings.
If the Tribunal had become aware of common issues and there were other issues to be resolved by the Tribunal in the Bennetts' rent increase application, the proper approach was not to dismiss the Tribunal proceedings. Rather the Tribunal should stay the proceedings and await the decision in respect of the issues which are before the Supreme Court which must be first resolved. Such an approach is consistent with the decision of White J in Steak Plains Olive Farms who, upon concluding that the Tribunal had jurisdiction to determine an issue regarding a claim for possession and that there were subsequent Supreme Court proceedings to which cl 5(3) applied, stayed the Supreme Court proceedings in which the tenant claimed relief against forfeiture from the Court in its equitable jurisdiction and sought damages: see Steak Plains Olive Farms at [107 - 111].
Further, if the Tribunal failed to do so, once the Appeal Panel became aware that the Bennetts Supreme Court proceedings had not been resolved, the Appeal Panel would need to consider whether the Tribunal had jurisdiction to make the orders or decision to which the appeal relates. This is because if the Tribunal had no jurisdiction to determine an issue at first instance that was fundamental to resolving the proceedings, then the Appeal Panel could not acquire jurisdiction to determine the issue on appeal. Rather, there would be an absence of jurisdiction to make the original Tribunal decision and the original decision would be susceptible to being quashed, at least to the extent that part of the decision purported to resolve the common issue.
However, there is no evidence to suggest that the Tribunal in the Bennett rent increase proceedings, which are the subject of this appeal, in fact became aware of the Bennett Supreme Court proceedings. Neither party has drawn to the attention of the Appeal Panel any evidence of this fact nor does the Decision suggest the presiding member was aware of the Bennett Supreme Court proceedings. Consequently, the provisions of clause 5(7) did not operate to remove jurisdiction from the Tribunal at first instance to determine the issue we have identified.
Further, save in the circumstances to which we refer below, clause 5 (7) does not operate to prevent the Appeal Panel from determining the appeal. This is because the clause only applies to the Tribunal exercising a Division function As the appellant correctly points out, an internal appeal is a function which the Tribunal exercises under its internal appeal jurisdiction pursuant to section 32 of the NCAT Act which is exercised by the Appeal Panel. The function is not a Division function as prescribed by clause 3 of schedule 4 of the NCAT Act.
The exception to this position may arise where the Appeal Panel is determining an internal appeal and exercising powers of the "Tribunal at first instance" as provided in s 81(2) of the NCAT Act. For present purposes, it is unnecessary to decide this issue.
In any event, even if clause 5(7) had applied, the decision of Hidden J has now been given in respect of the issue in favour of the appellant and the Appeal Panel must determine the appeal in the context of what has occurred. Insofar as Hidden J has made determinations about the proper construction of the RP Act and Holiday Parks Act, the Appeal Panel is bound by his decision. Insofar as there is an inconsistent finding concerning the legal relationship between the Bennetts and the appellant as determined by the Tribunal in the application the subject of this appeal and by the Bennett Supreme Court proceedings, the Appeal Panel is bound by the decision of Hidden J.
Accordingly, the Appeal Panel is satisfied that clause 5(7) does not prevent it from resolving the issues in this appeal.
Finally, we should deal with the respondent's submission that the Appeal Panel has no jurisdiction due to the appeal against the decision of Hidden J to the Court of Appeal.
In our view this submission is incorrect.
The fact that there has been an appeal against the decision of Hidden J does not affect the capacity of the Appeal Panel to resolve the appeals for the several reasons.
Firstly, the fact of an appeal from the decision of Hidden J does not, until the decision is set aside, affect his decision upon the issue nor that it remains binding on the parties until overturned on appeal. While the Court of Appeal may stay a decision or the proceedings below in which the decision was made, the filing of an appeal does not automatically do so: see Rule 51.44 of the Uniform Civil Procedures Rules 2005. In this regard neither party suggested the Court of Appeal has made any orders that might prevent the Appeal Panel from proceeding.
Consequently, in the case of the Bennetts' rent increase application and the appeal against that decision, the Appeal Panel remains bound by the determination of the issue by Hidden J.
Secondly, the appeal to the Court of Appeal was filed after the application was made to the Tribunal for the exercise of a Division function.
In our view, the Court of Appeal is a "court" within the meaning of clause 5(1) of Schedule 4. Clause 5(1) provides that for the purpose of the clause a court means: Any Court, Tribunal, Board or other body or person (other than one referred to in subclause (2)) that: (a) is empowered under any other Act, or (b) … to decide or resolve any issue that is in dispute, whether through arbitration or conciliation or any other means.
While there are some exceptions found in sub cl 5(2), these exceptions do not exclude the Court of Appeal from the definition of "court".
To the extent an issue raised in the Court of Appeal is a new issue to that identified above being the issue decided by Hidden J, clause 5(7) does not apply because the Court of Appeal proceedings were commenced after the time when "an application was made to the Tribunal for the exercise of a Division function". That is the appeal was filed after the date when the Bennetts originally applied to the Tribunal in the exercise of a Division function for the orders in connection with the excessive rent claim. Therefore the provisions of clause 5(7) do not operate to prevent the Appeal Panel from determining the other issues arising in the present appeal in respect of the Bennett proceedings challenging the rent increase.
Thirdly, clause 5(7) removes jurisdiction of the Tribunal to determine an issue already before a court. Even if the issue is now before the Court of Appeal, the Appeal Panel is not, in any sense, determining the issue. To the contrary, as these reasons make clear, the Appeal Panel is applying the determination of Hidden J.
Fourthly, the Court of Appeal will not be determining on appeal any issue about the relationship of the parties after the point in time to which the decision of Hidden J relates. This is because any appeal to the Court of Appeal would be limited to the subject matter and issues in the Bennett Supreme Court proceedings.
Fifthly, the Appeal Panel is not exercising a Division function in determining the appeal and for the reasons set out above clause 5(7) has no application in any event.
Therefore the challenge to jurisdiction on this basis fails.
Notwithstanding these views, a final matter to consider is whether the present appeal in connection with the Bennett proceedings should otherwise be stayed by the Appeal Panel.
The reason for such a stay would be that a successful appeal may resolve the issue in favour of the Bennetts. That is, if the Court of Appeal was to decide the Bennetts in fact had a residential agreement under the RP Act, the Appeal Panel would be bound by that decision. In this event the order remitting the proceedings for rehearing on this issue would be unnecessary.
On the other hand, if the appeal is unsuccessful, the final resolution of the proceedings in relation to the Bennetts claim that they had, in 2014, a residential tenancy agreement and that the rent increased imposed by the park owner was excessive would be delayed if a stay was granted.
On balance we think that a stay should not be ordered.
As we have found in connection with those parties other than the Bennetts, they have each signed written Occupation Agreements under the Holiday Parks Act which bound them at the date they were signed. When considering the findings of Hidden J and our conclusions above, the question to be resolved upon remittal is whether or not the arrangements between the appellant and each of the respondents, including the Bennetts, changed subsequently to the entry of the written Occupation Agreement.
These are not issues that will be resolved by the Court of Appeal proceedings, and certainly not in the case of the respondents other than the Bennetts.
This approach will allow the just, quick and cheap resolution of the real issues in dispute. However, to the extent necessary the Tribunal at first instance can determine whether the rehearing upon remittal should be delayed.

Costs

The appellant submitted that it should be entitled to an order for costs if successful appeal.
The appellant relies upon the complexity of the issues arising in the appeal, the number of respondents and that Rule 38 of the Civil and Administrative Tribunal Rules, 2014 may have applied to the proceedings at first instance. The appellant says that the usual order for costs should be made and that it is reasonable for the successful appellant to be reimbursed for the legal costs it has incurred.
In making this submission, the appellant pointed to the difficulty of calculating the amount in dispute in the proceedings at first instance.
In reply, the respondent said that each party should pay their own costs. In this regard the respondent submitted: Under Section 60 (1) of the Civil and Administrative Tribunal Act 2013, each party to proceedings in the Tribunal is to pay the parties own costs. The respondents submit that the appellant knew this at the time seeking counsel to appear. Further, the appellant is well versed in Tribunal proceedings and has not had Counsel represent on other occasions before the Tribunal.
In relation to an appeal, an order for costs can only be made by the Appeal Panel if it is satisfied that there are special circumstances warranting an order for costs: see section 60(2) NCAT Act. Special circumstances include the complexity of the case: see section 60 (3) (d).
As is evident from these reasons, the issues raised on this appeal are complex. The resolution of the appeal was on the basis that the Tribunal's reasons were inadequate and the Appeal Panel was unable to finally resolve the dispute other than by remittal to the Tribunal for further hearing.
In our view, the appeals had sufficient complexity to constitute special circumstances.
However, we think that the proper order for costs in the present circumstances is that each party should pay their own costs. We have formed this view for the following reasons: 1. Part of the complexity of the appeal arose from the manner in which the proceedings at first instance were conducted. As we indicated above, the position of individual occupiers of the sites was not separately addressed by the parties or the Tribunal. The conflating of issues and the absence of attention by the parties to address individual circumstances meant that it was not possible to finally determine all issues on appeal. 2. There were appeals which the parties settled after the hearing of the appeals concluded on the basis that there would be no order for costs. These appeals themselves would have involved costs being incurred in considering and preparing for hearing; 3. While the appellant was successful in the appeals relating to those respondents who have written Occupation Agreements, that success has not resulted in the original applications being dismissed which was the orders sought on appeal. Rather, the proceedings have been remitted. 4. The appellant was unsuccessful in relation to the rent increase issue in the appeal concerning Mr Douglas.
We will make orders accordingly.

Orders

The Appeal Panel makes the following orders: 1. By consent, in appeal AP 14/55554, the name of the respondents are amended to Henry Barrett Brown also known as Barry Brown and Susan Brown; 2. In respect of each of those appeals listed in Annexure A marked "Settled", by consent those appeals are dismissed with no order as to costs; 3. In respect of each of those appeals listed in Annexure A marked "Allowed", the appeal is allowed; 4. In each appeal to which order 3 applies, the Appeal Panel makes the following orders: 1. The orders made 5 September 2014 are set aside; 2. The application is remitted for rehearing in accordance with these reasons and according to law by a differently constituted Tribunal; 3. The rehearing is limited to determining: 1. whether the written Occupation Agreement of the respondent (applicant in the Tribunal proceedings) was subsequently varied and/or a new agreement entered into with the appellant (respondent in the Tribunal proceedings) so as to permit the respondent to occupy their site as their principal place of residence under a residential tenancy agreement to which the Residential Parks Act, 1998 applies; 2. if so, whether the Tribunal should make orders for a refund of rent for the 12 month period commencing 1 April 2013 and/or in respect of the rent payable for the 12 month period commencing 1 April 2014. 3. if not, what orders should be made. 1. the application is to be listed for directions in the Consumer and Commercial Division for the purpose of facilitating the rehearing; and 2. the parties may adduce further evidence limited to the issues identified in order (c). 1. In respect of appeal AP 15/15601 in which Mr Craig Douglas is the respondent, the appeal is dismissed; 2. In respect of the appeals marked "Allowed" in Schedule A, each party is to pay their own costs. 3. In respect of appeal AP 15/15601 (Mr Douglas) each party is to pay their own costs.

Annexure A SITE NUMBER / RESPONDENT Site 1 - Ian Wall Site 4 - Olive Ward Site 6 - Max & Ruth Lodge Site 7 - Marianne Van Burk Site 8 - Janece Heath Site 9 - Jean Freeman Site 14 - Ronald Withers Site 15 - Barry Pyle Site 17 - Raymond Kavanagh Site 18 - Val Downey Site 19 - Mr Edward Sawden Site 35 - Donald & Lauren Bennett Site 39 - Valerie Bellert Site 42 - Dorothy Skinner Site 43 - Louis Site 47 - Craig Douglas Site 56 - Barry & Kaye Hart Site 60 - Damien McGowan Site 64 - John & Fleur Gibb Site 65 - Clyde Roberts Site 66 - Trevor Site 74 - Colin Anderson Site 80 - Beverly Staunton Site 82 - Ivan & Susan Roberts Site 83 - Bob Dunston Site 84 - Robert Bliss Site 89 - Robert Lawrence Site 105 - Brian Pyle Site 109 - Jill Webster Site 117 - Henry Site 120 - Ronald Russell Site 124 - Mr Hambleton Site 126 - Robert Cameron Site 127 - Gaye Powell Site 132 - Olga Alexandra Site 133 - Ron Madigan Site 134 - Dennis Site 136 - Elaine Markwell Site 137 - Alan King OCCUPATION / RESIDENTIAL AGREEMENT & DATE OF AGREEMENT PARTY TO ORDERS 19/4/2012 APPEAL PROCEEDINGS No ORIGINAL PROCEEDINGS No: Appeal Result Residential - 24/09/2007 Yes AP 15/15570 RP 14/12412 Settled Occupation - 10/09/2010 Yes AP 14/55605 RP 14/11752 Allowed Occupation - 17/09/2008 Yes AP 14/55602 RP 14/12222 Allowed Occupation - 25/11/2008 Yes AP 14/55597 RP 14/12188 Allowed Occupation - 21/09/2009 Yes AP 14/55590 RP 14/12367 Allowed Residential - 30/09/1993 Yes AP 15/15579 RP 14/12413 Settled Residential - 30/09/1993 Yes AP 15/15580 RP 14/12152 Settled Residential - 30/09/1993 Yes AP 15/15582 RP 14/12098 Settled Residential - 06/11/2002 Yes AP 15/15588 RP 14/12432 Settled Residential - 03/10/2002 Yes AP 15/15759 RP 14/12434 Allowed Occupation - 30/01/2008 Yes AP 15/15590 RP 14/11757 Allowed Occupation - 31/03/2008 Yes AP 14/55586 RP 14/12231 Allowed Occupation - 25/03/2008 Yes AP 14/55584 RP 14/12417 Allowed Residential - 30/09/1993 Yes AP 14/55535 RP 14/12354 Settled Attard & Elsie Herbert Occupation - 17/07/2009 Yes AP 14/55580 RP 14/12101 Allowed Residential - 15/09/2005 Yes AP 15/15601 RP 14/12410 Dismissed Residential - 30/09/1993 Yes AP 15/15583 RP 14/12473 Settled Occupation - 02/09/2009 Yes AP 15/15592 RP 14/12415 Allowed Residential - 23/02/2003 Yes AP 15/15593 RP 14/12315 Settled Occupation - 28/02/2011 Yes AP 14/55577 RP 14/12350 Allowed & Evelyne Goodwin Occupation - 13/08/2010 Yes AP 15/15594 RP 14/11705 Allowed Occupation - 07/12/2009 Yes AP 14/55573 RP 14/12428 Allowed Residential - 18/03/2002 Yes AP 14/55523 RP 14/12103 Settled Occupation - 25/09/2009 Yes AP 14/55571 RP 14/12227 Allowed Occupation - 08/01/2011 Yes AP 14/55568 RP 14/12186 Allowed Occupation - 16/10/2009 Yes AP 14/55565 RP 14/11738 Allowed Occupation - 25/02/2011 Yes AP 14/55564 RP 14/12394 Allowed Occupation - 27/04/2012 No AP 14/55560 RP 14/12463 Allowed Residential - 17/12/2002 Yes AP 14/55529 RP 14/12153 Settled Barrett Brown also known as Barry Brown & Susan Brown Occupation - 20/04/2010 Yes AP 14/55554 RP 14/12469 Allowed Occupation - 13/08/2011 Yes AP 14/55596 RP 14/12407 Allowed Residential - 30/09/1993 Yes AP 15/15599 RP 14/12467 Settled Residential - 12/06/2002 Yes AP 15/15584 RP 14/12345 Settled Residential - 30/09/1993 Yes AP 15/ 15586 RP 14/12347 Settled Occupation - 30/09/2010 Yes AP 14/55589 RP 14/12398 Allowed Occupation - 03/06/2011 Yes AP 14/55579 RP 14/12471 Allowed Wallis & Beres Richards Occupation - 30/09/2011 Yes AP 14/48780 RP 14/11730 Allowed Occupation - 01/02/2014 No AP 14/55549 RP 1412360 Allowed Residential - 30/09/1993 Yes AP 15/15587 RP 14/11789 Settled

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 January 2016

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