Hacienda Caravan Park Pty Ltd v Dodge

NCAT Appeal Panel|2018-04-04

Solicitors: Worcester & Co (Appellant) Tenants Union of NSW Co-Op Ltd (Respondent) File Number(s): AP 18/05013 Publication restriction: Nil. Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 17 January 2018 Before: W Priestley, General Member File Number(s): RC 17/33896

REASONS FOR DECISION

The appellant is, and has been since at least 2 June 2006, the owner and operator of a caravan park / camping ground known as the Tweed River Hacienda Holiday Park situated at Chinderah in northern NSW (the "Park").
In January 2010, the respondent exchanged contracts to purchase a moveable dwelling from that dwelling's then owners. That contract for purchase was settled on 7 April 2010.
The dwelling was situated on site 201 in the Park and has remained at that site ever since. The respondent commenced living on a permanent basis in that dwelling at site 201 from 29 March 2010 and has continued to do so up to the present time.

Background

From at least 2 June 2006, the appellant had approval from the Tweed Shire Council under s 68(F2) of the Local Government Act 1993 (NSW) to operate the Park as a caravan park / camping ground.
A condition of that approval (which was periodically renewed) was that the operation of the Park had to comply with the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005 (the "Local Government Regulation").
The Local Government Regulation required that any approval by a relevant council for the operation of a caravan park had to specify the number, size and location of long-term and short-term sites.
In relation to short-term sites, reg 73(1)(b) of the Local Government Regulation provided that an approval to operate a caravan park was subject to the condition that: (b) a person must not be permitted to stay in a moveable dwelling that occupies a short-term site or camp site for a total of more than 150 days in any 12 month period, unless the moveable dwelling is a holiday van and the person is the owner of that holiday van.
As later explained, the dwelling purchased by the respondent was a "moveable dwelling" for the purposes of the RLLC Act, but the relevant site in dispute in these proceedings, site 201, was, on the evidence, approved only as a long-term site.
As referred to earlier, the respondent entered into a contract to purchase the dwelling from its previous owners in January 2010.
The Tribunal found that the vendors of the dwelling purchased by the respondent had occupied site 201 under the provisions of a site agreement (and not occupation agreement). By "site agreement" the Tribunal should be taken as meaning a "residential site agreement" under the provisions of the then current but since repealed Residential Parks Act 1998 (NSW) (the RP Act"), there not being a separately defined "site agreement" under that statute.
At about the same time, the respondent entered into a contract to sell his then home, a unit situated in Labrador, Queensland. That sale was completed on 29 March 2010.
Prior to contracting to buy the dwelling on site 201 in January 2010 the respondent obtained from the appellant two documents. One was headed "Application for Occupancy of Site" and the other "Application for Occupancy of Site Form". The latter document specifically referred to site 201 as the site for which occupancy was sought.
The respondent obtained those forms from Helen Holt, a person who worked in the appellant's office at the Park. When he obtained those forms from Ms Holt he said to her: "We are moving from Labrador to buy the home on site 201 and live here as our home."
Ms Holt replied: "OK, we'll need to get some paperwork signed."
The Tribunal found that the only reasonable interpretation of this conversation was that the respondent intended to make site 201 his principal place of residence after he purchased the dwelling.
The respondent completed various details in the Application for Occupancy of Site document and wrote at the bottom of its first page: "I will be purchasing the property within the next six months."
By "the property" the respondent meant the moveable dwelling.
That form contained various printed undertakings which the respondent gave (by his signature) to the effect that he would not occupy the site until certain documents had been completed and executed. One such document was an "Occupation Agreement signed by applicant (sic) and park owner" and another was "Letter from park owner acknowledging that occupancy is accepted and approved".
The respondent also undertook that if he did occupy the site prior to those forms being completed, he would vacate the premises immediately on request of the park owner.
The respondent completed various details in the Application for Occupancy of Site Form document and wrote at the bottom of the page marked "Page 3 of 7": "It is my intention to sell my property and pay cash for the demountable home referred to in this application."
By "my property" the respondent meant his Labrador unit.
The respondent submitted those completed forms to the appellant on or about 7 October 2009.
At that time the RP Act was in operation. The RP Act remained in operation until it was repealed with effect from 1 November 2015 when the RLLC Act commenced operation.
The Tribunal found that the respondent's dwelling was a manufactured home within the meaning of that term as defined in the RP Act. It followed that, as at March 2010, the respondent's dwelling was a "moveable dwelling" as that term was defined in the RP Act as the definition of "moveable dwelling" included "manufactured homes".
The contract to purchase the dwelling (entered into in January 2010) was completed on 7 April 2010.
The respondent commenced occupation of the dwelling on site 201 on 28 March 2010.
No written agreement relating to the respondent's occupation was provided to him by the appellant before the commencement of the respondent's occupation, nor was any other document or verbal response given to the respondent by the appellant in response to his application submitted on 7 October 2009.
On 29 March 2010, the respondent went to the on-site Park office and requested a written agreement to occupy the site. He was given an occupation agreement containing the terms required of such by the HP Act. This was despite site 201 having been approved as a long-term, and not short-term, site. The document given to the respondent was unsigned.
The respondent took the occupation agreement away and read it. Amongst other things, the document said that the respondent would not be able to use site 201 for more than 180 nights during the course of a year, and would not be able to use the site for more than 28 continuous nights except with prior permission of the appellant.
The respondent was not prepared to agree to occupy site 201 on those terms.
He returned on the same day to the Park's office and complained to Ms Holt. He told her that he refused to sign the occupation agreement and asked to speak to the park owner (meaning the owner of the two issued shares in the appellant, being Mr Willmott). Ms Holt told the respondent that Mr Willmott was unavailable to speak to him at that time, but the matters raised would be drawn to Mr Willmott's attention.
Neither Mr Willmott nor any other person on behalf of the appellant communicated with the respondent in relation to the matters raised with Ms Holt on 29 March 2010.
Thereafter, the respondent occupied site 201 on a permanent basis (and for more than 180 nights during the course of a year). The respondent did not seek the appellant's permission to occupy site 201 for more than 28 continuous nights. He occupied the site without any "Occupation Agreement signed by applicant (sic) and park owner" and "Letter from park owner acknowledging that occupancy is accepted and approved" having been completed and executed. The appellant did not request the respondent to vacate the site.
The appellant sought to increase the rent for site 201 (and other sites) from time to time. The respondent, together with other residents of sites affected by the proposed rental increases, commenced proceedings in the Consumer Trader and Tenancy Tribunal (the "CTTT", the then relevant tribunal) in 2012 and 2013 under the RP Act for declarations under the RP Act that the rent increases were excessive. Those proceedings were settled by consent. The appellant did not challenge the jurisdiction of the CTTT to make such declarations, that jurisdiction being predicated on the respondent being a "resident" under a "residential tenancy agreement" under the RP Act, and not an "occupant" under an "occupation agreement" under the HP Act.
At all times since he commenced occupation of site 201 the respondent has paid, and the appellant has accepted, the rent requested by the appellant or agreed to by consent in the CTTT.

The Tribunal's Decision

In the proceedings the Tribunal held that the transitional provisions of the RLLC Act, particularly cl 5 of Schedule 2, had the effect that, if the HP Act did not apply, the respondent would be taken to have had a site agreement with the appellant under the RLLC Act.
The Tribunal found that an agreement had been entered into between the appellant and respondent and that the only terms agreed by the parties regarding the respondent's occupation of site 201 were that he would pay rent as requested by the appellant or as set by the CTTT (or its successor) and the appellant would allow the respondent to occupy the site "at will". That agreement commenced, the Tribunal found, when the appellant accepted the first rent payment which, the Tribunal inferred, was within one or two weeks of 28 March 2010.
The Tribunal considered whether the HP Act applied and held that it did not.
Section 5 of the HP Act said: (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.
The Tribunal held that the HP Act did not apply because: 1. the terms of s 5(1)(a) of the HP Act were not met because the respondent did not have a principal place of residence other than site 201 when he commenced occupying that site; and 2. the terms of s 5(1)(d) of the HP Act were not met because the respondent had not occupied the site on a casual basis with the consent of the appellant (that is, for less than 180 nights in a year, and for no more than 28 continuous nights without the appellant's prior permission).
The Tribunal then turned to the transitional provisions of the RLLC Act which had commenced operation on 1 November 2015, and which had repealed the RP Act effective from that same date, and set out its reasons for finding that those provisions applied to the agreement the Tribunal had found had been entered into between the appellant and respondent.
Clause 5 of Schedule 2 of the RLLC Act says: (1) Agreements entered into under the repealed Act that have not been terminated remain valid after the commencement of the relevant provisions of this Act. Note. Accordingly, an existing agreement continues without the need to sign a new agreement once this Act commences. (2) Without limiting subclause (1), a term of an agreement entered into under the repealed Act that provides for the increase of site fees by a fixed method (however expressed) remains in force after the commencement of the relevant provisions of this Act. (3) A residential site agreement, moveable dwelling agreement or NPWS agreement (other than an excluded agreement) in force immediately before the repeal of the repealed Act is taken, on that repeal, to be a site agreement between the resident (as or on behalf of the home owner) and the park owner (as operator of the community in which the home is located). (4) An excluded agreement in force immediately before the repeal of the repealed Act is taken, on that repeal, to be a tenancy agreement. (5) This clause does not validate a term of an agreement entered into under the repealed Act that was void under that Act. (6) In this clause: excluded agreement means a moveable dwelling agreement or NPWS agreement under which a resident occupies a home that is owned by the park owner. moveable dwelling agreement means an agreement of a kind referred to in clause 5 (1) (c) or (d) of the Residential Parks Regulation 2006 as in force immediately before its repeal by this Act. NPWS agreement means an agreement of a kind referred to in clause 5 (1) (e) of the Residential Parks Regulation 2006 as in force immediately before its repeal by this Act.
The Tribunal found that the agreement between the appellant and the respondent was "an agreement of a kind referred to in cl 5(1)(c) of the Residential Parks Regulation 2006 (NSW) (the "2006 Regulation", repealed with effect from 1 November 2015) and thus was a "moveable dwelling agreement" as that term is defined in cl 5(6) of Sch 2 as quoted above.
Regulation 5 of the 2006 Regulation was in the following terms: 5 Standard form of residential tenancy agreement: section 8 (1) The standard form of residential tenancy agreement is: (a) in the case of a residential site agreement that creates a tenancy for a term of 3 years or less - the form set out in Schedule 1, or (b) in the case of a residential site agreement that creates a tenancy for a term exceeding 3 years - the form set out in Schedule 2, or (c) in the case of an agreement that creates a tenancy for a term of 3 years or less and is not a residential site agreement or an agreement with respect to land reserved under the National Parks and Wildlife Act 1974 - the form set out in Schedule 3, or (d) in the case of an agreement that creates a tenancy for a term exceeding 3 years and is not a residential site agreement or an agreement with respect to land reserved under the National Parks and Wildlife Act 1974 - the form set out in Schedule 4, or (e) in the case of an agreement that creates a tenancy with respect to land reserved under the National Parks and Wildlife Act 1974 - the form set out in Schedule 5.
The Tribunal found that the agreement entered into between the appellant and respondent (see [44] above) was an agreement that created a tenancy for a term of less than three years and was not a residential site agreement (and not party suggested it was an agreement with respect to land reserved under the National Parks and Wildlife Act 1974). Accordingly, the Tribunal found that the agreement fell within reg 5(1)(c) of the 2006 Regulation.
Accordingly, the Tribunal found that the agreement fell within the definition of "moveable dwelling agreement" in cl 5(6) of Schedule 2 of the RLLC Act, that cl 5(3) of Schedule 2 applied, and therefore the agreement was taken to be a "site agreement" under the RLLC Act.
As site agreements under the RLLC Act are required to be in writing under s 26(1), the Tribunal granted the respondent's application for an order that the appellant prepare and enter into a written site agreement in the form prescribed by reg 6 of the Residential (Land Lease) Communities Regulation 2015 (NSW).

The Grounds of Appeal

The appellant's written submissions raised a number of issues but as refined in oral argument those were reduced (in substance) to submissions that the Tribunal erred in law in two respects.
First, the appellant submitted that the Tribunal erred in law in finding there was an agreement entered into between the appellant and respondent (Ground 1).
The appellant submitted that the Tribunal ought to have found there was no agreement at all, or, if there was an agreement, it was an occupation agreement to which the HP Act (and not the RLLC Act) applied. If that proposition was correct, it followed that the orders sought by the respondent under the RLLC Act could not have been made.
It is an error of law if there is no evidence to support the primary facts upon which an ultimate finding of fact is based, or, if the primary facts found (supported by evidence or not) are incapable of justifying the ultimate finding of fact - The Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126 at 138, Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-6; HCA 33, Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; HCA 32 at [91], Wesiak v D&R Constructions (Aust) Pty Ltd [2016] NSWCA 353 at [62]-[63] (per McDougall J, with whom Beazley P and Simpson JA agreed).
In relation to this first ground of appeal the ultimate finding of fact challenged was the finding that there was an agreement for a tenancy for a term of less than three years. The appellant submitted that there was no evidence to support the primary facts upon which that finding was made. Alternatively, if there was evidence supportive of those primary facts, the appellant submitted that the primary facts found were incapable of justifying that ultimate finding of fact. Thus, two errors of law are raised, but it is convenient to deal with them together.
The second error raised by the appellant was in the alternative. The appellant submitted that, if the first ground of appeal was not accepted, the Tribunal erred in finding that the agreement was "of a kind referred to in" reg 5(1)(c) of the Residential Parks Regulation 2006 (Ground 2).
The appellant submitted the agreement found did not fall within that regulation, was not therefore a "moveable dwelling agreement" within cl 5(6) of Schedule 2 of the RLLC Act and therefore was not deemed to be a "site agreement" under the RLLC Act per reg 5(3).
It is an error of law if the primary facts found were necessarily within or outside a legal (statutory or non-statutory) test - Wesiak at [64] - [65]; Attorney General (NSW) v X (2000) 49 NSWLR 653 per Spigelman CJ, with whom Priestley JA agreed, at [126]; Hope v Bathurst City Council (1980) 144 CLR 1 at 10 per Mason J, with whom Gibbs, Stephen, Murphy and Aickin JJ agreed. See also Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; FCA 456 and Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389; HCA 36.
In relation to this ground of appeal the appellant submitted that the primary facts found necessarily fell outside the legal test that the agreement had to be "of a kind referred to in" reg 5(1)(c) of the Residential Parks Regulation 2006 in order to be a "moveable dwelling agreement" under cl 5(6) of Sch 2 of the RLLC Act.
This does not appear to have been an argument raised before the Tribunal.
Ordinarily a party is bound by the way it conducts proceedings below. The relevant statement of principle is set out in Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 where the plurality (Gibbs CJ, Wilson, Brennan and Dawson JJ) said at 7: "… To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework of the issues so determined and not otherwise. In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards."
The principles applicable to raising a new argument on appeal were summarised in Multicon Engineering Pty Ltd v Federal Airports Corp (1997) 47 NSWLR 631; [1997] NSWCA 214. In that case Mason P, with whom Gleeson CJ and Priestley JA agreed, said at 645: "A party seeking to advance for the first time on appeal a new ground not taken at trial will be precluded from doing so if the new ground could possibly have been met by calling evidence at the hearing or if, had the ground been raised below, the respondent might have conducted the case differently at trial. Multicon Engineering argues that these principles do not preclude it from raising the constitutional point on appeal, because all that is in issue is the proper approach to be followed in considering whether to adopt a report in a matter in the Federal jurisdiction. The evidence which each party wished to rely upon was before the judge. However there is another principle of more direct relevance. A party does not have a right to insist that a new point be decided on appeal simply because all of the facts have been established beyond controversy or the point is one of construction or of law, even constitutional law. This is because it remains a question of whether the appellate court "may find it expedient and in the interests of justice to entertain the point": Water Board v Moustakas (1988) 180 CLR 491 at 497; see also Jones v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 32 at 47."
No objection was taken to the raising of this argument for the first time on appeal, nor did the respondent assert that had it been raised below further evidence could have been called or the case conducted differently.
In our opinion it is, per Multicon, expedient and in the interests of justice that we entertain and decide this argument. Section 36(1) of the Civil and Administrative Tribunal Act 2013 No 2 (NSW) requires that the guiding principal to apply is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Section 38(4) says that the Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. Section 38(5) says that the Tribunal is to take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.
The respondent, properly with respect, does not assert any prejudice would arise if this argument was entertained. There have been a number of disputes between the parties, and between the appellant and other residents of the Park, which have resulted in proceedings being commenced in the NCAT. The resolution of this argument in this appeal may mean there is one fewer dispute that may arise between the appellant and residents of the Park, or perhaps between park owners of other caravan parks and residents of those parks.
Accordingly, we propose to consider and decide the second ground of appeal.

Ground 1

The appellant submitted that the only offer of an agreement was its proffering of a written occupation agreement to the respondent on 29 March 2010.
That offer was not accepted by the respondent, and so, the appellant submitted, there was no agreement at all. Put another way, absent offer and acceptance, there was no agreement. The appellant relied upon the reasoning in Hacienda Caravan Park Pty Ltd v Howarde [2016] NSWCATAP 1 to support that submission.
Alternatively, the appellant submitted that since the only offer made was one in relation to an occupation agreement, and as the respondent entered into possession and paid rent, the proper finding that the Tribunal ought to have made was that an occupation agreement was entered into.
In our opinion Hacienda Caravan Park Pty Ltd v Howarde is distinguishable from the present case and does not assist the appellant.
In that case the respondents purchased a dwelling situated on site 129 in the caravan park in question. At the time of sale, the vendor of that dwelling had an occupation agreement (under the HP Act) with the appellant.
On 8 October 2014 the respondents signed and submitted an application form which was in similar terms to that signed and submitted by the respondent in the present case.
On 9 October 2014 the appellant sent to the respondents a letter which said, inter alia, that the appellant was in a position to offer them an agreement under the HP Act.
On 10 October 2014 the appellant provided a written occupation agreement to the respondents for them to sign. The respondents refused.
The appellant then refunded to the respondents the sum of $356 earlier paid by the respondents (presumably for rent) on the same day and informed the respondents in writing that they vacate the caravan park immediately and make arrangements to have the structure on site 129 removed.
The Appeal Panel in that case said that the Tribunal's findings about an agreement were ambiguous, and so it was necessary for the Appeal Panel to determine whether there was an agreement between the parties and, if so, on what terms.
The Appeal Panel examined the evidence and determined that the events which occurred "did not give rise to any legally binding agreement between the parties". Accordingly, it was found that there was no agreement to which the RP Act applied.
Although factually similar in a number of respects, there are a number of fundamental factual differences between the facts in Hacienda Caravan Park Pty Ltd v Howarde and the facts in the present case.
Fundamentally, neither the Tribunal nor the Appeal Panel in Hacienda Caravan Park Pty Ltd v Howarde made any finding that an agreement arose from the conduct of the parties. In the present case the Tribunal found an agreement had arisen between the parties (by conduct), the terms of which were that the respondent could occupy site 120 and the respondent would pay rent.
It is clear that the Tribunal's finding of an agreement in this case was based upon the conduct of the parties at the time and subsequently. The subsequent conduct of parties is admissible on the question of whether a contract was formed - see Sagacious Procurement Pty Ltd v Symbion Health Pty Ltd [2008] NSWCA 149 at [99]-[101] and the cases cited therein (per Giles JA, with whom Hodgson and Campbell JJA agreed).
In the present case the respondent paid rent which was accepted by the appellant for some eight years. The appellant did not and has not demanded the respondent vacate the site and remove his dwelling. In two proceedings brought by the respondent (and others) in relation to excess rent (and which depended upon the RLLC Act applying) the appellant did not contend that the Tribunal lacked jurisdiction to determine that issue because of the absence of any agreement between it and the respondent and to which the RLLC Act applied. The respondent has occupied the site permanently, that is for more than 180 nights in any one year, and for more than 28 continuous nights in any one period without seeking the appellant's permission to do so. Further, site 120 was only approved as a long-term site, and was not approved as a short-term site.
Therefore, in our opinion Hacienda Caravan Park Pty Ltd v Howarde is distinguishable from the present case.
The primary facts referred to by the Tribunal (set out at [85] above) were supported by uncontested evidence. Thus, there was evidence to support the primary facts upon which the finding of ultimate fact was based.
In our opinion, and for the following reasons, those primary facts were capable of justifying the ultimate finding of fact that an agreement for a tenancy "at will" i.e. for a term of less than three years, had arisen (by conduct) between the parties.
In Baulkham Hills Private Hospital v G R Securities Pty Ltd (1986) 40 NSWLR 622 McLelland J summarised the basal principle at 627.F-G as follows: "There was a binding contract, if, and only if, by the exchange of letters the parties mutually communicated their respective assents to being legally bound by terms capable of having contractual effect (see the discussions in Film Bars v Pacific Film Laboratories (1979) 1 BPR 9251 at 9254 ff. and Air Great Lakes v KS Easter [1985] 2 NSWLR 309). In the last mentioned case Mahoney JA (at 326) identified three questions which it is often useful to consider in such a context as the present, namely 'did the parties arrive at a consensus?; (if they did) was it such a consensus as was capable of forming a binding contract?; and (if it was) did the parties intend that the consensus at which they arrived should constitute a binding contract?'".
In relation to agreements arising from conduct, McHugh JA, with whom Hope and Mahoney JJA agreed, said in Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110 (at 11,117-11,118) as follows: "… [A] contract may be inferred from the acts and conduct of parties as well as or in the absence of their words…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… 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..… 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."
It is apparent that the Tribunal found that the parties, by their conduct, arrived at a consensus that the respondent occupy site 201 and pay rent at the amount agreed. That consensus was capable of forming a binding contract and it is apparent that the Tribunal found that the parties intended that the consensus at which they had arrived should constitute a binding contract. That was made apparent by the two subsequent proceedings in the CTTT, proceedings which could only be determined by the CTTT if there was a binding agreement between the parties (and one to which the RP Act applied). As the Tribunal in this case found, the appellant did not contend otherwise in those CTTT proceedings.
The primary factual findings to which we have referred, together with the uncontested evidence that the respondent rejected the appellant's offer to enter into a written occupation agreement on 29 March 2010, are sufficient to dispose of the submission that the parties had entered into an occupation agreement on that date.
Also inconsistent with that submission was that the appellant's tacit acceptance of the respondent's occupation of the site for more than 180 nights in any one year, and for more than 28 continuous nights in any one period without express permission.
A further reason for rejecting the appellant's submission is that, as the Tribunal found, the HP Act did not apply to the agreement entered into between the appellant and respondent, and thus the agreement was not taken out of the purview of the RP Act by operation of s 6A of that Act. Section 6A(1) of the RP Act said: This Act does not apply to an agreement or to a site to which the Holiday Parks (Long-term Casual Occupation) Act 2002 applies.
We have set out the terms of s 5 of the HP Act at [45] above. The Tribunal found that the terms of s 5(1)(a) of the HP Act were not met because the respondent did not have a principal place of residence other than site 201 when he commenced occupying that site, and the terms of s 5(1)(d) were not met because the respondent had not occupied the site on a casual basis with the consent of the appellant (that is, for less than 180 nights in a year, and for no more than 28 continuous nights without the appellant's prior permission).
The relevant time to consider whether the respondent had a principal place of residence other than site 201 was on the date the agreement was entered into - Bennett v Gennacker Pty Ltd [2016] NSWCA 89 at [36] per Basten JA, with whom Beazley P and Ward JA agreed.
The Tribunal found that the respondent's Labrador property had ceased to be the respondent's principal place of residence by at least 28 March 2010. The Tribunal found that the agreement between the appellant and respondent commenced once the respondent accepted the first payment of rent from the respondent, which was within one or two weeks of the 28 March 2010. Therefore, on those facts, at the time the agreement was entered into, the respondent did not have a principal place of residence other than site 201.
The appellant submits that it relied upon the statement in the application form that the respondent's "Permanent Residential Address" was the Labrador property. That may be so, but s 5(1)(a) of the HP Act depends upon an objective fact, whether the respondent had a principal place of residence other than site 201 at the relevant time and does not depend on what may have been represented.
The appellant submits there was no evidence that the respondent's principal place of residence ceased to be the Labrador property by at least 28 March 2010. We reject that submission. Accepting that the Labrador property was the respondent's principal place of residence when he submitted the application form in October 2009, there was documentary evidence that the sale of that property had been completed by 29 March 2010. The uncontested evidence was that the respondent commenced occupation of site 201 on 28 March 2010, being the first day when the respondent commenced moving his possessions into the dwelling on site 201.
Finally, the appellant submits that even if the respondent's principal place of residence was site 201, that fact is beside the point because it simply meant that the respondent was in breach of the occupation agreement.
We reject this submission. It depends upon the finding of an occupation agreement, a finding that was not made. Further, the HP Act says, in terms, that it does not apply to all occupation agreements, but only to occupation agreements that satisfied the conditions in s 5. As two of those conditions were not met that Act did not apply to the agreement entered into as found by the Tribunal.

Ground 2

In relation to this Ground the appellant submitted that, if the first ground of appeal was not accepted, the Tribunal erred in finding that the agreement was "of a kind referred to in" clause 5 (1) (c) of the 2006 Regulation as required by the terms of the definition of "moveable dwelling agreement" in cl 5(6) of Sch 2 of the RLLC Act.
The appellant made two submissions why that was so.
First, it submitted that the words "of a kind referred to in" clause 5 (1) (c) of the 2006 Regulation, where they appear in cl 5(6) of Sch 2 of the RLLC Act, properly construed, mean agreements which expressly i.e. in writing, contained the terms set out in Schedule 3 of the 2006 Regulation because that form is referred to in reg 5(1)(c).
The appellant submitted that the agreement found by the Tribunal did not contain those terms in writing (set out in Schedule 3), and therefore that agreement was not "of a kind referred to in" cl 5(1)(c).
Second, the appellant drew attention to the note contained at the top of the form which appeared in Schedule 3. That note said: This Form is to be used if the resident is to rent: (a) a site for the placement of a caravan that is owned by the resident and does not have a rigid annexe, or (b) a site and a home, from the park owner.
The appellant submitted that that note qualified the agreements to which the form applied, namely where the resident was renting a site for the placement of a caravan owned by the resident and which did not have a rigid annexe, or was renting a site and a home. As the respondent rented a site alone, and the site contained a moveable dwelling and not a caravan, the appellant submitted the form did not apply to the respondent and thus the agreement was not of the relevant kind.
We reject the first submission because, as we shall now explain, the provisions of the RP Act deemed any agreement, even if not in writing, to contain the terms set out in Schedule 3 of the 2006 Regulation.
The RP Act defined a "residential site" as: a site within a residential park that is used, or is intended to be used, for the installation of a moveable dwelling.
A moveable dwelling was situated on site 201, and therefore the site was "used" for the installation of a moveable dwelling within the meaning of that definition. Accordingly, site 201 was a 'residential site" as defined.
The RP Act provided that "residential premises": (a) means any premises or part of premises (including any land occupied with the premises) used or intended to be used as a place of residence, and (b) includes a residential site on which a moveable dwelling is situated or intended to be situated (or both a moveable dwelling and residential site), if the moveable dwelling is used or intended to be used as a place of residence.
Site 201, being a residential site, was used, or was intended to be used, as a place of residence. The uncontested evidence of the respondent proved that fact. Accordingly, site 201 was "residential premises" as defined.
The RP Act provided that a "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.
Under the agreement found by the Tribunal, the appellant granted the respondent a right to occupy site 201, for value, and for use as a residence. It mattered not whether that agreement was express or implied, was oral, in writing or partly oral or partly in writing as the definition makes clear. Thus, the agreement found, implied from the conduct of the parties, was a "residential tenancy agreement" as defined under the RP Act.
Section 8(1) of the RP Act provided that the regulations may prescribe a standard form of residential tenancy agreement.
Section 9(1) of the RP Act provided: If a standard form of residential tenancy agreement is prescribed by the regulations, a residential tenancy agreement for which a form is prescribed and that is entered into on or after the day the form is prescribed, or any later day prescribed by the regulations for the purpose, must be in or to the effect of the form.
Regulation 5(1)(c) of the 2006 Regulation then provided that the standard form of residential tenancy agreement in the case of an agreement that created a tenancy for a term of less than 3 years was the form set out in Schedule 3.
As the RP Act recognised in the definition of "residential tenancy agreement" and also in s 16A, the possibility existed that residential tenancy agreements would not be in writing. Section 16A of the RP Act relevantly said: (1) A park owner who, after the commencement of this section, knowingly enters into a residential tenancy agreement that is not in writing or that is only partly in writing is guilty of an offence. Maximum penalty: 10 penalty units. (2) The fact that a residential tenancy agreement is not in writing does not by itself mean that the agreement is void or voidable. (3) A residential tenancy agreement that is not in writing is taken to include the following standard terms: (a) each term set out in the relevant prescribed standard form of residential tenancy agreement (with the blank spaces filled in with appropriate details), (b) each term prescribed by the regulations.
Pursuant to s 16A(3) of the RP Act the residential tenancy agreement entered into between the appellant and respondent, and which was not in writing, was "taken" to include each term set out in the prescribed form, being that appearing in Schedule 3 of the 2006 Regulation.
Thus, it is not correct to say, as the appellant submitted, that the agreement found by the Tribunal did not contain the terms set out in the prescribed form. It is true those terms were not in writing, but they did not need to be.
Turning to the appellant's second submission, the note in the prescribed form identified by the appellant was simply that, a note. At most it was a marginal note as referred to in s 35 of the Interpretation Act 1987 (NSW) and which may be taken into consideration in construing the provision, being the regulation, but it was not regulation itself.
Even if it had some regulatory effect, it was in conflict with the terms of the statute and regulation as we have set out above which provided that that form be used for all qualifying residential tenancy agreements, which included residential tenancy agreements for sites on which was situated a moveable dwelling and not just sites for the placement of a caravan owned by the resident and which did not have a rigid annexe, or residential tenancy agreements for renting a site and a home.
The principles for resolving conflict between legislative provisions were summarised in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28. In that case McHugh, Gummow, Kirby and Hayne JJ said at [70] (footnotes omitted): "A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme."
If there be conflict between the provisions we have identified and the note (and on the assumption the note is a provision), in our opinion those statutory and regulatory provisions are the leading provisions and the note the subordinate provision. Accordingly, the note must give way.
If we be wrong about that, in our opinion the words "of a kind" where they appear in cl 5(6) of Schedule 2 of the RLLC Act mean that the subject agreement need only be of the same sort as, and not a typical or perfect specimen of, the type of agreement described in the 2006 Regulation.
As far as our researches have revealed, there has been no judicial consideration of the meaning of the words "of a kind" where they appear in cl 5(6) of Schedule 2 of the RLLC Act. However, a similar expression appears in other legislation.
In Lansell House Pty Ltd v Commissioner of Taxation [2011] FCAFC 6 the Full Court of the Federal Court was called upon to decide the meaning of the phrase "of a kind specified" where it appeared in s 38-3(1)(c) of the New Tax System (Goods and Services Tax) Act 1999 (Cth) (the "GST Act"). At [30], Bennett, Edmonds and Nicholas JJ said: "The appellants further submit that the primary judge erred in taking into account that Mini Ciabatte is "substantially the same" or "largely the same" in its attributes as a cracker. We do not accept that submission. First, as explained above, there is no bright line test for what is or is not a cracker. Secondly, although the primary judge did not need to consider whether or not Mini Ciabatte is "goods of a kind" specified in Sch 1 as a cracker, this answers many of the appellants' submissions. The phrase "of a kind" has been defined by the Oxford English Dictionary (online edition, Oxford University Press, 2010) as "of the same sort, not a typical or perfect specimen of the class". The word "kind" is appropriately used to denote a genus, class or description (Commonwealth of Australia v Spaul (1987) 74 ALR 513 at 516 per Davies, Lockhart and Neaves JJ). The use of the words "of a kind" in s 38-3(1)(c) of the GST Act adds further generality to the description of the items described in Sch 1: Air International Pty Ltd v Chief Executive Officer of Customs (2002) 121 FCR 149 per Hill J. Thus, a new product that does not possess all of the same characteristics of known crackers may nevertheless be within the relevant item."
In our opinion the words "of a kind" where they appear in cl 5(6) of Schedule 2 of the RLLC Act have a similar operation. That is, and assuming the 2006 Regulation specifies agreements under which a resident rents a site for the placement of a caravan without a rigid annexe, or a site and a home, cl 5(6) denotes agreements of the same sort as residential tenancy agreements applying to those caravans or sites and homes.
No statutory purpose or context for differentiating between the specific agreements described in the note and other residential tenancy agreements is discernible.
The proper approach to statutory construction is well settled. In Project Blue Sky the plurality said (at [69] footnotes omitted): "The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed."
More recently, in SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34, Keifel CJ, Nettle and Gordon JJ observed at [14] (footnotes omitted): "The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected."
In that same case Gageler J said (footnotes omitted): "[35] Mason J said in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd: Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasize the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise. [36] Drawing on that statement, and its antecedents, Brennan CJ, Dawson, Toohey and Gummow JJ said in CIC Insurance Ltd v Bankstown Football Club Ltd: '[T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy.' [37] Both of those passages have been 'cited too often to be doubted'. Their import has been reinforced, not superseded or contradicted, by more recent statements emphasising that statutory construction involves attribution of meaning to statutory text. The task of construction begins, as it ends, with the statutory text. But the statutory text from beginning to end is construed in context, and an understanding of context has utility 'if, and in so far as, it assists in fixing the meaning of the statutory text'. [38] The constructional choice presented by a statutory text read in context is sometimes between one meaning which can be characterised as the ordinary or grammatical meaning and another meaning which cannot be so characterised. More commonly, the choice is from 'a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural', in which case the choice 'turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies'. [39] Integral to making such a choice is discernment of statutory purpose. The unqualified statutory instruction that, in interpreting a provision of a Commonwealth Act, 'the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation' 'is in that respect a particular statutory reflection of a general systemic principle'."
Gageler J's reference in [39] to the "statutory instruction" was a reference to s 15AA of the Acts Interpretation Act 1901 (Cth). That section's equivalent in New South Wales is s 33 of the Interpretation Act 1987 (NSW) which says: In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.
A good indication of the purposes and objects of the RLLC Act can be gained from the terms of ss 5 - 7. Those sections provide: 5 Application of Act to communities This Act applies to all communities: (a) whether existing immediately before or coming into existence after the commencement of this section, and (b) whether described as residential parks, caravan parks, manufactured home estates, communities or otherwise, and (c) whether or not any relevant approval for them has been obtained under the Local Government Act 1993, and (d) whether or not they are included in the Register, unless a provision of or under this Act provides otherwise. Note. Section 11 provides for exemptions under the regulations. 6 Application of Act to site agreements (1) This Act applies to all site agreements, whether existing immediately before or coming into existence after the commencement of this section, unless a provision of or under this Act provides otherwise. (2) Where this Act applies to a site agreement, it so applies despite the terms of the agreement or any other contract, agreement or arrangement, whether made before or after the commencement of this section. (3) This Act applies to a site agreement until it is terminated in accordance with this Act. 7 Arrangements to which this Act does not apply (1) This Act does not apply to the following arrangements made in good faith: (a) an occupation agreement to which the Holiday Parks (Long-term Casual Occupation) Act 2002 applies, (b) an arrangement for occupation of a residential site for holiday purposes, (c) an arrangement for occupation of a residential site or home by an itinerant worker, unless the parties to the arrangement agree to enter into a site agreement or tenancy agreement, (d) an arrangement for accommodation in a community for a full-time employee of the operator or owner, (e) any other arrangements prescribed by the regulations. (2) The operator of a community who enters into an arrangement of the kind referred to in subsection (1) and who knows at the time or ought reasonably to know at the time that it is not made in good faith commits an offence. Maximum penalty: 100 penalty units. (3) In this section: arrangement includes a contract or agreement. itinerant worker means a person who lives elsewhere but stays in a community due to seasonal work in the area (for example, fruit picking). Note. If an arrangement of the kind referred to in this section is not entered into in good faith, orders could be sought from the Tribunal under section 9.
"Community", in s 5, is defined in s 4 to be: community or residential community means an area of land that comprises or includes sites on which homes are, or can be, placed, installed or erected for use as residences by individuals, being land that is occupied or made available for occupation by those individuals under an agreement or arrangement in the nature of a tenancy, and includes any common areas made available for use by those individuals under that agreement or arrangement.
Section 5 is of wide compass. The use of the words "all communities" in the context of the following categories evinces an intention that the Act have the widest application.
Section 6 is cast in similarly wide terms.
At the same time the exclusionary provision, s 7, delineates with some precision the types of agreements or arrangements to which the Act does not apply.
The RLLC Act replaced the RP Act, and so it can be assumed that one purpose of the RLLC Act was to apply to all agreements (or arrangements) to which the RP Act formerly applied. As we have endeavoured to explain at [109] - [120] above, the RP Act provided for residential tenancy agreements for sites on which were situated moveable dwellings, and it does not seem to us that the RLLC Act would exclude those agreements and yet include the agreements specifically referred to in the note. Such a construction accords with the language of the provisions in their context, the general purpose and policies of the provisions as evident in the purposes and objects of the RLLC Act and the other provisions.
In our opinion the primary facts as found by the Tribunal fell within the statutory test posed by clause 5(1)(c) of the 2006 Regulation, and thus the Tribunal correctly found that the agreement was a "moveable dwelling agreement" as defined in cl 5(6) of Sch 2 of the RLLC Act. It follows that that moveable dwelling agreement was a site agreement for the purposes of the RLLC Act.

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: 08 May 2018

Residential Parks Act 1998(NSW)

Residential Parks Regulation 2006(NSW)

New Tax System (Goods and Services Tax) Act 1999(Cth)

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