Judy Tucker and Ors v Tricare

NCAT Consumer and Commercial|2014-09-08

Respondents: Dr S Berveling Respondent: Gary Oldman Minter Ellison Lawyers File Number(s): RP 14/17769 & Ors

Procedural History 1The application was filed on 1 April 2014. The residents sought orders: (i)that the park owner take steps to remedy a breach of the site agreement. (j)that there be a 90% rent reduction backdated 12 months. (k)that the park owner pay compensation to the residents. 2Reasons for requesting the orders were set out in a document attached to the application. The crux of the residents claim was that the park owner allowed the park to deteriorate over a 7-year period and there had been a loss of facilities, services and amenities. 3The matter came before me on 4 April 2013. It was adjourned for hearing on a day following the hearing of another application by the park owners for site agreements to be terminated. 4On 22 May 2014 applicants lodged the documents they wished to rely on with the Tribunal. The park owner did the same on 12 May 2014. 5On 22 May 2014, the applicants requested an additional order under loss or reduction of previously existing services and facilities. They stated loss of storage facilities for recreational vehicles and caravans. Applicants on Site 54 had received a letter dated 19 May 2014 from the park owner alleging the residents were storing such vehicles in the park without the consent of the owner. 6A site inspection was held on the day of hearing.

JURISDICTION 7The residents relied on the following sections of the Residential Parks Act 1998 ("RPA"): 16 Applications relating to a breach of or dispute under residential tenancy agreement (1) If a park owner or a resident under a residential tenancy agreement claims that a breach of a term of the agreement has occurred, the park owner or the resident may, not later than 30 days after becoming aware of the breach, apply to the Tribunal for an order in respect of the breach. .... (6) 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, (b) an order for the payment of an amount of money, (c) an order that a party to the residential tenancy agreement perform such work or take such other steps as the order specifies to remedy a breach of the agreement, (d) an order as to compensation, including (without limiting the Tribunal's power to make such an order): (i) compensation for loss of rent, and (ii) compensation where a park owner withholds or refuses consent to the removal of a resident's fixture, and (iii) compensation for any other breach of the residential tenancy agreement, (e) an order that requires payment of part or all of the rent under the residential tenancy agreement into the Tribunal until the whole or part of the agreement has been performed or any application for compensation has been determined, (f) an order that requires payment (out of rent paid into the Tribunal) towards the cost of remedying a breach of the residential tenancy agreement or towards the amount of any compensation. (7) An order under subsection (6) (a) may be made even though it provides a remedy in the nature of an injunction or order for specific performance in circumstances in which such a remedy would not otherwise be available. (8) An application under this section may be made during the currency of or after the termination of a residential tenancy agreement and may be made whether or not notice of termination has been given or an order for termination has been made by the Tribunal. In addition, an application under subsection (5) may be made whether or not the proposed residential tenancy agreement was executed. 24 Park owner's responsibility for cleanliness and repairs (1) It is a term of every residential tenancy agreement that: (a) the park owner must provide the residential premises (for instance, the moveable dwelling and the residential site or the residential site only) and the common areas of the residential park in a reasonable state of cleanliness and fit for habitation by the resident, and (b) the park owner must provide and maintain the residential premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises. (2) In this section: residential premises includes everything provided with the premises, for use by the resident, under the residential tenancy agreement. 28 Urgent repairs ...... urgent repairs means any work needed to repair any one or more of the following: (a) a burst water service, (b) a blocked or broken lavatory system, (c) a serious roof leak, (d) a gas leak, (e) a dangerous electrical fault, (f) flooding or serious flood damage, (g) serious storm or fire damage, (h) a failure or breakdown of the gas, electricity or water supply to the residential premises, (i) a failure or breakdown of any essential service provided with the residential premises for hot water, cooking, heating or laundering, (j) any fault or damage that causes the residential premises to be unsafe or insecure, (k) any other damage prescribed by the regulations, but does not include work needed to repair premises not owned by the park owner or a person having superior title to that of the park owner. (3) Nothing in this section prevents a resident, with the consent of the park owner, from: (a) making repairs to the residential premises, and (b) being reimbursed for the costs of those repairs. 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. 29 Locks and other security devices (1) It is a term of every residential tenancy agreement that: (a) the park owner must provide and maintain such locks or other security devices as are necessary to ensure that the residential premises are reasonably secure. 8The Tribunal had jurisdiction to hear the matter.

EVIDENCE OF THE APPLICANTS 9Written evidence the applicants relied on at hearing was: (a)Statements of Judy Tucker, Robert Frills, Beryl Anderson, Susan Allen, Kevin Byng, Phillip Tucker. (b)Letter of 17 August 2011 form the former park owner to rudiments indicating new contract managers had been appointed for the park. (c)7 Gaunt 2011 letter eliding invitation to settle accounts by direct debit. (d)Undated Letter form park owner to Ms Tucker alleging behavioural breaches by residents. (e)Reply letter of residents dated 10 February 2014. 10Residents' statements asserted that: (a)when a development occurred during Stage 1 of the park redevelopment over 7 years prior to hearing, the residents lost their pool, tennis court, meeting hall and BBQ hut. (b)for a period residents were granted use of the pool, gymnasium and exercise classes located at the newly developed aged facility at the front of the park but the respondent reneged on this when it took over control in 2011. (c)the former park owner undertook to rebuild the BBQ area and neither the former owner or the respondent had done this. (d)residents lost their opportunity to pay fees by cash, Centrepay or Centrelink. (e)when the respondent took control of the park in 2011 new off-site mangers were appointed. (f)the new managers were unresponsive or tardy in dealing with maintenance issues. (g)security at the park was decreased due to removal of the park boom gate and fencing at the southern end. (h)street lighting was not maintained. (i)park management attempted to cut electricity supply to mushroom poles in the park on 7 April 2014. (j)broken asbestos was apparent at dwellings that had been removed. (k)on 7 April 2104, park management removed, but did not replace spilt and damaged garbage bins and the bins remaining were not washed and posed a health risk. (l)lawn mowing was inadequate. (m)park signage had been remove causing propels sic as importer mail delivery. (n)vermin and white ants abounded in vacant dwellings that had not been removed. (o)open stormwater drains had not been cleaned of debris. (p)roads in and around the park were neglected. (q)uninvited visitors would come to the park and be abusive and cause a nuisance. 11Residents also stated that on 25 February 2014, someone entered the park and turned off the power at the main fuse box. About a week later, and despite assurances a lock would be installed on the fuse box, someone took 3 fuses and the park was plunged into darkness. The lock was finally put on shortly after that.

EVIDENCE OF THE RESPONDENTS 12The written evidence relied on by the respondents included: (a)Affidavit of Peter O'Shea sworn 7 May 2014. (b)expert report of Martyn Andrew, Licensed asbestos assessor. 13Mr O'Shea sated that he acquired a risk report for the park which established a structured approach to the management of health and safety. The park managers were obliged to comply with that structure. 14He also provide an electrical safety report dated 8 April 2014 and said all recommendations in that report were carried out at the park owner's cost shortly after the report was done. 15He also provided a general maintenance report of his managers. That report made a number of recommendations but these could not be carried out until a further asbestos report had been done. At the time of hearing the asbestos report had been done. 16In relation to each of the residents' concerns, he stated in his affidavit: (a)Boom gate and fence at southern end - a boom gate or fence was not present when the park owner purchased the park in 2011. They may have been removed prior. (b)Park street lighting - the current park owner did not remove any lighting. Some identified deficiencies in the risk assessment of 2011 had been repaired. (c)Mushroom poles - these had been disconnected and no longer provided power to derelict homes. (d)Broken asbestos - the park owner relied on the report tendered for this hearing. (e)Storm water grates rusted and water run-off problems - the grates were in the same condition in 2011 but admitted that not all storm water ran to the storm water grates. (f)Garbage collection and inadequate mowing - collection of rubbish was once a week and park managers inspected once a week. (g)Failure to maintain tress - there had been no previous request to remove palm fronds. (h)Park signage - an old sign was painted over as it confused passers-by. Letterboxes had been installed for each site. Photographs were supplied. (i)Derelict old dwellings - there had been a general clean-up of old homes but there is still some visible evidence of old homes. (j)Infestation of vermin at abandoned houses - there had been no reports of this. (k)Gas bottles - the park owner did remove empty gas bottles located behind the amenities block. (l)Open storm water drains - regular garden maintenance attempts to avoid this problem. (m)Poor roads - roads were poor on purchase in 2011. (n)No park manager on site - in 2011 when the park was purchased some residents asked for the on-site manger to be removed and an external manager was appointed. (o)Options to pay fees - residents could pay via cheque, direct debit or EFT. (p)No Community hall, swimming pool, tennis court, BBQ area - these were not present in 2011 save as to the tennis court which was dilapidated and used as a storage area for building rubble. The park owner removed it and the BBQ gazebo which was structurally unsafe. 17There had been no increase in site fees since the current owner purchased the park. 18The asbestos report was based on a site inspection carried out on 16 April 2014. A general inspection was carried out as was an inspection of particular old sites that were dilapidated. Asbestos materials were found at Sites 15 and 49 in the form of building material debris. If left undisturbed, the health risks to residents were considered very low. Remediation would require raking and hand-picking of all contaminated materials. Asbestos was also found on the external wall linings of the amenities block. The report recommended these be removed by a licensed contractor. 19In respect of the added claim for stored vehicles, Mr O'Shea said he wrote to the residents because Council had complained of non-resident recreational vehicles being stored on the ark. He said a later communication had also been received from Council indicating such storage was no longer disallowed and it was no longer an issue. 20In oral submissions, Dr Berveling said many issues arose around 2008 and others around the takeover of the park in 2011. As at the day of hearing a certain number of maintenance issues had not been resolved. He said the park owner would rectify these issues over a 2-month period.

FINDINGS AND DETERMINATION 21When determining whether to make a finding about excessive rent, factors to be considered are set out in s 57 of the RPA as follows: 57 Matters to be considered in determining rent applications The Tribunal may, in determining whether or not a rent increase or rent payable under a residential tenancy agreement or a proposed residential tenancy agreement for residential premises is excessive, have regard to each of the following factors: (a) The general market level of rents for comparable premises in the same residential park and in other residential parks in the locality or a similar locality, (b) the value of the residential premises, (c) the frequency and amount of past rent increases under the residential tenancy agreement or previous residential tenancy agreements between the same park owner and resident, (d) a general price index (such as the Consumer Price Index), (e) the conduct of the parties, (f) the amount of any outgoings in respect of the residential premises required to be borne by the park owner under the residential tenancy agreement or proposed agreement, (g) the estimated cost of any services provided by the park owner or the resident under the residential tenancy agreement or proposed agreement, (h) the value and nature of any fittings, appliances or other goods, services or facilities provided with the residential premises, (i) the accommodation and amenities provided in the residential premises and the state of repair and general condition of the premises, (j) any work done to the premises by or on behalf of the resident, to which the park owner has consented, (k) any other relevant matter. 22Residents bear the onus of proving the rent was excessive. The provided no evidence of general market level of rents for comparable premises. 23In my view the park owner has conducted itself in a way that addressed concerns for health and safety. For example, the response to the power outage at the amenities block was timely in replacing the fuses and lock. 24However, the park visit made it plain, and the applicant conceded that some aspects of park management have been inadequate. The residential premises and the state of repair was not in a good general condition. For example, sites were old dwellings had been removed, or remained, were in a poor condition. The drainage along the roadway did present a problem to residents. Foliage and cuttings had been dumped in various parts of the park rather than removed. 25I am satisfied that those issues can be addressed by the park owner complying with actions required in performance of its obligations under the site agreements. 26There have been no rent increases for 3 years, not even of the Consumer Price Index. Given the failure of the tenants to provide comparable site fees, it is more probable than not that fees in other parks are significantly higher. 27In a related matter I have terminated the site agreements and ordered residents to deliver up vacant possession on or before 20 September 2016. I am not satisfied a compensation or rent reduction order ought to be made. I am satisfied site fees ought not to increase before then. I am restricted under s 58(4)(a) of the RPA from making any order in relation to site fees for a period greater than 12 months. Orders are made accordingly, noting that during hearing evidence was give without challenge that all residents save as to Site 39 pay $102.50 per week in site fees. Site 39 is $95.00. 28It is true that facilities have been removed but these matters were historical by the time of hearing and the residents brought no claim at the time those services and facilities were removed. In addition, I accept the park owner's position that a number of these had been removed prior to take over of the park in 2011 except the agreement for the residents to use facilities at the aged care development at the front of the park. I am not satisfied that the owner was obliged to carry on that agreement after purchase. I also note that s 16(1) requires that any claim for such a breach may not be initiated later than 30 days after a resident becoming aware of the breach. G Bassett General Member Civil and Administrative Tribunal of New South Wales 9 September 2014 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: 31 October 2014

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