Hacienda Caravan Park Pty Ltd v Howarde

Appellant's submissions

1. The appellant's primary submission is that the Tribunal erred in law by incorrectly finding that the RP Act applied to the respondents' occupation of the relevant site, as the requirements of s 5 (1) of the RP Act had not been met.
2. The appellant submits that for the RP Act to apply, s 5(1) requires that: 1. There must be a residential tenancy agreement. 2. The respondents must have in fact occupied the premises as their principal place of residence. 3. There must be approval from the appellant for the respondents to occupy the premises as their principal place of residence.
3. The appellant submitted, that if any one of those three requirements was not satisfied, the RP Act did not apply, and the Tribunal had no jurisdiction to make the orders that it did.
4. Further, the appellant submitted that, based on the evidence before the Tribunal, the Tribunal could not have found that these requirements were met.
5. In developing this argument, the appellant submitted: 1. The Tribunal found in the Decision, at [9] - [12], that the respondents had not signed any written agreement with the appellant. 2. For an agreement to be enforceable it must satisfy the essential features of offer and acceptance. In this regard the appellant submitted that a contract could be inferred from conduct as well as or in the absence of their words. The appellant relied on the decision of Integrated Computer Services Pty Ltd v Digital Equipment Corporation (Australia) Pty Ltd (1988) 5 BPR 97,326 at 11,117. 3. The Tribunal was required to consider the correspondence as a whole and the conduct of the parties in determining whether an agreement had been reached. 4. In the present circumstances, the appellant was only prepared to approve the respondents' occupancy of site 129 on the basis of an Occupancy Agreement under the HP Act; 5. The respondents refused to sign the Occupancy Agreement, and therefore there was "no agreement or meeting of the minds".
6. The appellant then set out in its submissions an analysis of the history of the matter and the various documents constituting the evidence before the Tribunal. In summary, the appellant submitted: 1. The respondents entered a contract with Ms Elizabeth Elliott, the previous occupier of site 129, to purchase her relocatable home at a price of $36,000.00. This contract for sale was said to be subject to the appellant agreeing to assign Ms Elliott's site agreement to one of the respondents, Mr Howarde. This agreement was an occupation agreement dated 6 January 2014 which included terms preventing an occupant from occupying the site for more than 180 days in any 12 month period. 2. The respondents had applied on 8 October 2014 to occupy site 129. They completed an application form which included a term that they not occupy the site until all necessary documents, including an occupation agreement, had been signed. 3. The appellant had submitted an occupation agreement to the respondents on 9 October 2014, which they refused to sign, there being no pre-existing occupation agreement between the respondents and the appellant. 4. The respondents never occupied site 129 as their principal place of residence and their intention to do so was irrelevant because the appellant was never prepared to approve occupation of the site on this basis. 5. The offer made by the appellant clearly demonstrates that no consent was given for the respondent to occupy the site as their principal place of residence.
7. Consequently, there was no basis for the Tribunal to conclude that there was a residential tenancy agreement to which the RP Act applied because the requirements of s 5(1) of the RP Act had not been met and there was no jurisdictional for the Tribunal to make orders under the RP Act.
8. The appellant developed these submissions during oral submissions and made reference to various documents that were originally before the Tribunal and before the Appeal Panel on appeal.

Respondents' submissions

1. The respondents made the following submissions: 1. The respondents were not told by the appellant that they could not live in their home on site 129 permanently when they made enquiries and submitted their written application. 2. No reference is made to either the RP Act or the HP Act in the application for occupancy of the site. They submit that the practice of omitting any reference to either Act is both deliberately misleading and deceptive conduct on the part of the appellant. 3. If a site is designated as a long-term site at the time of entering an agreement, particularly a residential site agreement, then it is a breach of the agreement for a residential park owner to grant occupation rights limited to short-term occupancy only. Site 129 is designated as a long-term site for permanent residents not for short term occupation. 4. At the time the appellant initially approved the respondents for occupancy of site 129, it did not disclose any restriction on the right of occupancy to be granted, nor did it expressly prohibit the respondents from occupying site 129 as a principal place of residence when pre-contractual enquires were made and/or being negotiated. 5. In another matter involving the appellant and the residential park the subject of the appeal, Cooper v Hacienda Caravan Park Pty Ltd [2006] NSWCTTT 694, the Consumer Trader and Tenancy Tribunal found that there was a tenancy pursuant to the RP Act and that it had jurisdiction to hear the matter.
2. In making these submissions, the respondents said that they were acquiring a home which had been installed by a previous permanent resident, Mr Venn. The dwelling had apparently been sold to Ms Elliott whom the respondent said was "only offered and entered into an occupation agreement with the appellant": written submission at [12]. In this regard, the respondents assert that the "appellant may have acted contrary to the RP Act and in particular s 144 (of the) RP Act which prohibits contracting out of the rights of residence where an agreement, contract is entered into with the intention of either directly or indirectly defeating, evading or preventing the operation of the RP Act or the Regulations". The respondent also referred to earlier proceedings involving Mr Venn and earlier findings that he was a resident with an agreement to which the RP Act did apply.
3. The respondents also made submissions to the effect that the Tribunal was empowered pursuant to the Contracts Review Act 1982 to vary, in whole or in part, any provision of a contract or agreement between the parties. The respondents referred to s 7 of that Act.
4. The Appeal Panel notes this was not a matter dealt with by the Tribunal in the Decision nor was this reference to the Contracts Review Act developed in written or oral submissions by the respondents before the Appeal Panel.
5. In oral submissions, the respondents acknowledged they had attended the office of the appellant on 8 October 2014 and had subsequently been provided with an occupation agreement under the HP Act for signing. However, they submitted the appellant never advised them they could not occupy site 129 as their principal place of residence. The respondents also submitted that the appellant had "turned a blind eye" to those who had occupation agreements who occupy their sites for a period in excess of the permitted periods. Reference was made to the evidence of the appellant's witness, Ms Hickling, in the transcript at p 10, found in appellants' bundle at p 37.
6. In relation to signing the occupancy agreement given to the respondents, they had apparently advised the appellant that they wished to seek legal advice.
7. The respondents acknowledged to the Appeal Panel that the Tribunal had made no finding that there was an oral contract between the parties. However, the respondents relied on the correspondence which had been identified by the appellant, that they had been told they could occupy the site and that they had made a payment to the appellant as establishing their rights.

Consideration

1. The appellant seeks to appeal on questions of law.
2. Consequently leave to appeal is not required provided the appeal is filed in time: see s 80(2) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) and r 25 of the Civil and Administrative Tribunal Rules 2015 (Rules).

Leave to extend time

1. Initially, it appeared that the appeal was filed out of time and leave to extend the time to appeal was required. The respondents did not consent to an extension of time in which the notice of appeal could be filed.
2. After oral evidence was given by Ms Tania Hickling, the Appeal Panel delivered oral reasons finding that the Notice of Appeal had been lodged in accordance with r 25 of the Rules and that the appeal was therefore filed in time.

Tender of fresh evidence

1. We also note that at the hearing the respondents sought to tender a statutory declaration of the respondent Mr Mark Howarde sworn 7 April 2015. The contents of the statutory declaration related to an attendance by Mr Howarde at the appellant's office at the residential park. The appellant objected to the tender of the declaration on the basis that it had not been tendered below, was fresh evidence, and that Mr Howarde was not available for cross-examination. In addition, the respondents sought to tender a licence issue to the appellant pursuant to s 68 of the Local Government Act 1993 to operate a caravan park. After the hearing of lengthy oral submissions the Appeal Panel delivered oral reasons rejecting the tender of the statutory declaration and the licence.

Was there an agreement between the parties permitting occupancy of site 129

1. The critical issue for determination in this appeal is whether the Tribunal was correct in finding that approval had been given by the appellant to the respondents to occupy site 129 as their principal place of residence and that the appellant was obliged to enter into a residential tenancy agreement with the respondents under the RP Act.
2. The correctness of this decision depends on whether the parties had entered into a binding agreement and, if so, on what terms.
3. In our view, in order for the Tribunal to make orders under the RP Act, there must be a residential tenancy agreement which satisfies the requirements of s 5 (1) of the RP Act. Although a park owner must ensure that any agreement is in writing, an agreement that is not in writing is still enforceable and is not before it: see s 16A(2) of the RP Act which provides: 16A What if there is no written agreement? . . . (2) The fact that a residential tenancy agreement is not in writing does not by itself mean that the agreement is void or voidable.
4. However, in the absence of an agreement, there is no jurisdiction given to the Tribunal to compel a park owner to enter into such an agreement with a person who is not a resident of the residential park.
5. The following facts as recorded in the Decision are relevant to a determination of this appeal and are not the subject of challenge: 1. At the time of the hearing, the respondents were renting a unit at Tweed Heads: Decision at [7] and [13]. 2. On 9 October 2014, the respondents purchased the relocatable home situated on site 129 price of $36,000.00. The contract for sale provided that it was subject to the respondents agreeing to the assignment by the vendors of a site agreement relating site 129: Decision at [9]. 3. The vendor had a written occupation agreement pursuant to the HP Act: Decision at [9]. 4. On 8 October 2014, the respondents applied to the appellant to occupy site 129. Item 5 of the application required the signing of an occupation agreement: Decision at [10]. 5. On 9 October 2014, the appellant wrote to the respondents stating their application and offering the respondents an occupation agreement pursuant to the HP Act, which the respondents refused to sign: Decision at [11]. 6. The respondents paid $356.00 "in anticipation of taking up occupation of the site", those monies being refunded: Decision at [12]. 7. The respondents intended to vacate the Tweed Heads rented premises and occupied site 129 as their principal place of residence: Decision at [13] - [14].
6. The Tribunal made further findings in connection with those facts which are appropriate to set out in detail: 17 The application form signed by the (respondents) provided for them to agree to sign an occupation agreement. The type of occupation agreement was not specified. 18 I find that the (respondents) are ready and willing to sign a site agreement pursuant to the Residential Parks Act but it seems that the (appellant) considers that it can determine the type of agreement which it can require a resident to sign. In my view the (appellant) cannot insist on the signing of a certain type of agreement if that agreement would be contrary to the occupation of the site and the relevant legislation. …… 20 If a resident is occupying a site as a permanent place of residence that resident has to be required to sign a site agreement. The Residential Parks Act, by s 9 provides for agreements to be in standard form. 21. The (respondents) cannot be asked to sign an agreement pursuant to the Holiday Parks (Long - Term Casual Occupation) Act because that agreement limits the occupation of the site to 180 days per annum and no more than 28 days consecutively. The (respondents) cannot agree to these restrictions if the home is their principal place of residence. 22. I find that the (appellant) gave approval to the residence to occupy site 129 subject to the signing of an occupation agreement. The (appellant) cannot operate contrary to the legislation. It must submit a Residential Parks Act agreement to the (respondents) for signature. Once that document is signed the (respondents) are entitled to immediate occupation of the site.
7. These findings are somewhat ambiguous. On the one hand, the Tribunal appears to conclude there was no agreement. In this regard, the Tribunal appears to have accepted (at [17] - [21]) that the signing of the application form did not give rise to an enforceable agreement because: 1. The appellant required the respondents to sign an occupation agreement which was not specified. 2. The respondents were ready and willing to sign an agreement pursuant to the RP Act. 3. The appellant had only provided and was "insisting" on the signing of an occupation agreement which would not permit the respondents to occupy their site as their principal place of residence.
8. On the other hand, the Tribunal determined the appellant gave approval to residents who occupy the site 129 subject to signing an occupation agreement and that the appellant was required to submit an agreement under the RP Act which, upon signing by the respondents, entitled them "to immediate occupation of the site."
9. The Tribunal then determined at [23] that s 16 of the RP Act enabled the Tribunal to make both restraining orders and performance orders requiring the appellant to submit a standard form agreement under the RP Act for signature by the respondents.
10. Section 16(6) provides as follows: The Tribunal may, on application by a person under this section, make one or more of the following orders: (a) an order that: (i) restrains any action in breach of the residential tenancy agreement, or (ii) requires an action in performance of the agreement,
11. As s 16 makes clear, the power to make orders under s 16(6)(a)(ii) requires that there be an agreement of which performance can be ordered. It seems reasonably clear that the Tribunal was therefore satisfied that there was an agreement under the RP Act for which an order for performance could be made, although the terms of this agreement and whether it was partly oral, partly in writing and/or partly inferred are not made clear.
12. Consequently, it is necessary for the Appeal Panel to determine whether or not there was an agreement between the parties, and if so, on what terms. In this regards offer and acceptance and an objective intention of the parties to form a binding agreement is relevant although a contract might also be inferred: see Integrated Computer Services per McHugh JA at [16]
13. As indicated above, the respondents made reference to the dealings with the previous occupier of site 129, Ms Elliott, who was the vendor of the dwelling located on the site which was sold to the respondents on 9 October 2014. The respondents also made reference to the possession of an earlier occupier of the site, Mr Venn.
14. In our view, these matters, and the contract for sale of the dwelling between the respondent and Ms Elliott, are irrelevant to a determination of this appeal. This is because while cl 7 of the contract for sale between the parties states that the contract was conditional upon assignment of Ms Elliott's occupation agreement to the respondents, neither party submitted to the Tribunal nor to the Appeal Panel that the appellant was requested to consent to such an assignment and/or that such a request was refused. This is hardly surprising, as the agreement which Ms Elliott had was an occupation agreement under the HP Act: see Decision at [9].
15. Whether or not an agreement was entered into between the appellant and the respondents requires an analysis of what occurred on about 8 October 2014 and following, in particular, whether the completion of the application form of 8 October 2014, what occurred on 9 October 2014 and the payment of $356.00 gave rise to an enforceable agreement to which the provisions of the RP Act applied.
16. The application, which is found in the appellants bundle at p 22, was in the following terms: The [appellant] and its employees or workers has no involvement and makes no representations in the selling and purchasing of the dwelling, the sale is strictly between the purchaser and the vendors . . . PRIOR to processing your application we require all of the following information to be supplied . . . The lodging of this application does not constitute acceptance of the new owner being an occupant within the park. I understand and agree that should the application not be accepted, the [appellant] is not required or obligated to disclose why or supply any reasons for the rejection of this application. I/We hereby undertake under no circumstances to occupy the site until all of the following documents and items have been completed and satisfactorily executed . . . 1. Finally completed and signed Application form Occupation of Site form … 4. Payment of $15.00 for preparation of occupation agreement 5. Occupation Agreement signed by [respondents] and [appellant]. 6. Letter from [the appellant] acknowledging that occupancy is accepted and approved. In the event that I do occupy the site prior to the above being completed, I undertake to vacate the premises immediately on request of the [appellant]. I/We acknowledge that we have read and understand the contents of this document.
17. This document was signed by the respondents and dated 8 October 2014.
18. The next page of this document, p 2 of 7 (appellant's bundle page 23), states under the heading "Privacy Disclosure Statement": If you do not complete this form or do not sign the consent below, then your application for occupation of the site may be rejected. If the applicant enters into an occupation agreement and if the applicant fails to comply with their obligations under the agreement, that fact and any other relevant personal information collected about the applicant during the course of the occupancy may be disclosed to the landlord, third-party operators of the tenancy reference database and/or other agents.
19. On 9 October 2014 the appellant sent to the respondents a letter acknowledging receipt of their application. That letter is found in the appellant's bundle p 21 and states: We have received your application for occupancy in the Park and are in a position to offer you an agreement under the Holiday Parks (Long-term Casual Occupation) Act 2002. It is important that you satisfy yourself that the registrable movable dwelling and associated structures comply with all the relevant regulations and that working smoke alarm(s) are to be installed in the dwelling as per the legislative requirements. Please advise in writing the date you wish to commence occupancy of the site so that we can prepare an occupation agreement for signing by yourself prior to you commencing occupancy of the site.
20. It is clear from the evidence of the respondent Mr Howarde in the transcript that this is the document which constituted the approval which the Tribunal found had been given to occupy the site and that there was no oral or other approval given: see transcript pp 6-8 in appellant's bundle at pp 33-35. It is also clear from this section of the transcript that an occupation agreement under the HP Act was the only form of agreement offered to the respondent: see Mr Howarde's last answer on p 6 of the transcript where he says "we were only offered that one agreement".
21. There is no dispute that the form of agreement provided for signing to the respondents on 10 October 2014 was an occupation agreement under the HP Act. A copy of this document is found at appellant's bundle p 60 and following. There is also no dispute that the respondents refused to sign the agreement in consequence of which the appellant repaid to the respondent the sum of $356.00 under cover of letter dated 10 October 2014. The letter is appellant bundle p 19. That letter, having set out the terms of the application signed by the respondents dated 8 October 2014 continued: As you have refused to sign the occupation agreement dated 9 October 2014 and the above undertaking by yourselves we require you to vacate the Park immediately and make arrangements to have the structures removed site 129 Friday, 17 October 2014. Under no circumstances are you to occupy the premises and Site 129.
22. In our view, upon its proper construction, the application form dated 8 October 2014 which the respondents completed was not an offer capable of acceptance by the respondents signing and returning it to the appellant. Rather, it was an application by the respondents to enter into an occupancy agreement with the appellant which was conditional upon various matters including signing a document called "Occupation Agreement". Therefore, the signing of the application form by the respondents and its return to the appellant did not give rise to a legally binding contract. The provisions of the application form that support this conclusion include the following: PRIOR to processing your application we require all of the following information to be supplied… …. The lodging of this application does not constitute acceptance of the new owner being an occupant within the park. I understand and agree that should the application not be accepted, the park owner is not required or obligated to disclose why or supply any reasons for the rejection of this application. I/We hereby undertake under no circumstances to occupy the site until all of the following documents and items have been completed and satisfactorily executed: … 5. Occupation Agreement signed by the applicant and the park owner. 6. Letter from park owner acknowledging that occupancy is accepted and approved. In the event that I do occupy the site prior to the above being completed, I undertake to vacate the premises immediately on request of the park owner.
23. While the Tribunal concluded the application form did not specify the form of agreement to be offered, there is some doubt that this interpretation of the application is correct. The reason for this doubt is that agreements under the HP Act are called "occupation agreements" whereas agreements under the RP Act are called "residential tenancy agreements" or "residential site agreements". However, as we have concluded the submission of the application form did not give rise to a legally binding agreement, it is unnecessary to determine the terms of that agreement.
24. Further, in the opinion of the Appeal Panel, what occurred on 9 October 2014, when the respondents were given the occupation agreement to sign, did not otherwise give rise to any legally binding agreement between the parties. To the contrary, the evidence makes clear that: 1. The only form of agreement offered by the appellant to the respondent in respect of site 129 was an Occupation Agreement under the HP Act which did not permit the occupation of the site as the respondents principal place of residence. 2. The respondents did not sign this agreement nor accept the terms. 3. Upon the respondents' refusal to sign the Occupation Agreement, the appellant refunded to the respondent the sum of $356.00.
25. Finally, in the opinion of the Appeal Panel, none of the evidence to which it has been referred would constitute an approval by the appellant for the respondents to occupy the site as their principal place of residence, and the fact the respondents intended to occupy the site on this basis is irrelevant.
26. The Tribunal appears to have had regard to the intention of the respondents to occupy the site as their principal place of residence as determinative of the issue. However, this misconceives the operation of the RP Act which first requires there be an agreement. It also fails to recognise that a person who is not a resident in a park has no right to demand a particular right of occupancy if they are entering into a new agreement to occupy a site in a park.
27. While there is a right to assign a residential tenancy agreement to which the RP Act applies and the park owner may not unreasonably withhold or refuse consent: see s 41 of the RP Act, as we have stated above, this was not a case involving assignment. Further, and in any event, the agreement permitting the vendor (Ms Elliott) to occupy the site was not a residential tenancy agreement under the RP Act. Rather, it was a written occupation agreement under the HP Act: Decision at [9]
28. It follows from the above that there was no agreement to permit the respondents to occupy site 129 and the Tribunal was in error in concluding that: 1. The appellant was obliged to enter into a residential tenancy agreement under the RP Act with the respondents. 2. The respondents were entitled to occupy the site as their principal place of residence.

Conclusion

1. The appellant submitted that the proceedings should be remitted to the Tribunal to determine in accordance with these reasons.
2. The problem with this course of action is that we have found that there was no agreement entered into by the parties permitting occupancy of the site. The correspondence to which we have referred, including the notice given by the appellant on 10 October 2014 makes clear that there was no right of occupation until an occupation agreement was signed and that, absent agreement, any existing dwelling on the site which the respondents might own would need to be removed. In these circumstances, there could be no occupation agreement to which the HP Act applies and the Tribunal would have no jurisdiction to determine any dispute in connection with the notice dated 10 October 2014.
3. If there is some other notice or some other basis upon which the respondents subsequently entered into possession of the site, this was not a matter raised on appeal nor does it appear it was raised before the Tribunal at first instances.
4. It follows that the appeal should be allowed and the application dismissed.

Costs

1. In relation to the costs of the original proceedings, s 60 of the NCAT Act applies. No submissions were made that there were special circumstances that apply. The case has no features that make it out of the ordinary: see Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11]. The issue was whether or not an agreement had been concluded between the parties were a new occupant was to move to an existing park site. In this regard, while the appellant was represented by its officer, Ms Hickling, at the Tribunal hearing, who also gave evidence, the case proceeded in the usual way. Accordingly there should be no order for costs.
2. In relation to costs of the appeal, an opportunity should be given to the parties to make any application they consider appropriate. In this regard, the Appeal Panel has formed a preliminary view that there should be no order as to costs, and that each party should pay their own costs, as there does not appear to be special circumstances warranting such an award. However, as there may be matters of which the Appeal Panel is unaware, the appropriate course is to allow the parties to make submissions as to the costs of the appeal.

Orders

1. The Appeal Panel makes the following orders: 1. Appeal allowed. 2. The orders made on 15 January 2015 are set aside and in lieu thereof application RP 14/50276 is dismissed, with no order as to costs. 3. Any application for costs in relation to the appeal is to be filed and served within 14 days from the date of these orders. Any application is to include written submissions and any other material to be relied upon in support of the application. 4. The party against whom any application for costs is made must file and serve any submissions and material in reply within 21 days from the date of these orders. 5. The applicant for costs is to file any submissions in reply within 28 days from the date of these orders. 6. The submissions by the parties are also to address the question of whether or not any application for costs should be dealt with on the papers and whether the Tribunal should make an order to allow this to occur. 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: 06 January 2016