Kozlik v Frank Davies Investments Pty Ltd t/as Lake Hume Tourist Park

The appeal proceedings

1. The Appellant filed her Notice of Appeal on or soon after 23 October 2014. In its Reply to Appeal, which was filed on 28 November 2014, the Respondent accepted that the Notice was filed within time.
2. On 4 November 2014, an Appeal Panel constituted by Magistrate Hennessy, Deputy President, ordered that Order 3 made by the Tribunal should be stayed on condition that the Appellant pay the daily site fee required by Order 6.
3. On 11 November 2014, directions were made for the filing and serving of 'submissions and other material' by the parties. The material filed included a quantity of fresh evidence and a sound-recording of the proceedings before the Tribunal.
4. The appeal was heard by us on 4 March 2015. The Appellant appeared in person and the Respondent appeared by its director, Mr G Scarborough.
5. The Appellant put forward three grounds of appeal in her submissions to us. We will consider these in turn. But before doing so, we will quote relevant passages from the legal instruments governing the rights of the parties.

Relevant provisions of the Act, the Agreement and the Park Rules

1. The provisions of the Act that are of direct relevance to this appeal are as follows:- 3 Definitions (1) In this Act:… park rules for casual occupants, in relation to a holiday park, means: (a) the rules made and amended under Part 6 of the Residential Parks Act 1998 in relation to the holiday park (which is called a residential park in that Act), and (b) any amendments to those rules made under section 25 of this Act. 24 Park rules for casual occupants form part of occupation agreements (1) The park rules for casual occupants for a holiday park, as in force from time to time, are terms of every occupation agreement in respect of a site in the holiday park. (2) However, a park rule: (a) that is inconsistent with this or any other Act, or (b) that is inconsistent with a term of an occupation agreement, is not a term of that agreement, to the extent of the inconsistency. 26 Applications to the Tribunal relating to a breach of an occupation agreement or to a disagreement (1) If: (a) a park owner or an occupant under an occupation agreement claims that a breach of a term of the agreement has occurred, or (b) a disagreement occurs between a park owner and an occupant concerning a matter that could form the basis of a breach of the occupation agreement (other than an increase in the occupation fee or any other matter of a kind prescribed by the regulations), the park owner or the occupant may, not later than 30 days after becoming aware of the breach or the disagreement, apply to the Tribunal for an order in respect of the breach or disagreement. 27 What orders can the Tribunal make? (1) The Tribunal may, on application by a person under section 26, make one or more of the following orders:… (a) an order that: (i) restrains any action in breach of the occupation agreement or the cause of the disagreement, or (ii) requires any action in performance of the agreement or to resolve the disagreement, (b) an order for the payment of an amount of money, (c) an order that the park owner give the occupant the correct notice of termination of the occupation agreement, (d) an order that a party to the occupation agreement perform any work or take any other steps that the order specifies to remedy a breach of the agreement or to resolve the disagreement, (e) an order as to compensation… (f) an order terminating the occupation agreement and an order for possession of the site. 28 Recovery of possession does not require a Tribunal order A person may recover possession of a site in accordance with this Act or an occupation agreement without the need to obtain an order of the Tribunal. 34 Goods abandoned by occupant after occupation agreement is terminated (1) If an occupation agreement is terminated and goods are left by the occupant on the site, the person who was the park owner under that agreement may: (a) apply to the Tribunal for an order under this section, or (b) remove, store, sell or otherwise dispose of the goods in accordance with any provision made by the regulations, or both. (2) The Tribunal may, on application under this section by the person who was the park owner under an occupation agreement, make any one or more of the following orders: (a) an order authorising the removal, destruction, sale or other disposal of goods left on the site, (b) an order authorising the sale of abandoned goods, (c) an order directing that notice of any action or proposed action in relation to abandoned goods be given to the former occupant or any other person, (d) an order as to the manner of sale of abandoned goods, (e) an order as to the proceeds of sale of abandoned goods, (f) any ancillary order that the Tribunal, in the circumstances, thinks appropriate. Schedule 1 Terms that are taken to be in every occupation agreement 17 Offensive behaviour The occupant agrees not to interfere with or cause or permit interference with, or allow any person that the occupant invites into the holiday park to interfere with: (a) the reasonable peace, comfort or privacy of any neighbour of the occupant or any other person lawfully in the holiday park, or (b) the proper use and enjoyment of the holiday park by the other occupants or residents of the holiday park. 18 Use of the site The occupant agrees:… (b) not to cause or permit a nuisance. 36 Ending this agreement The park owner and the occupant agree that this agreement can be terminated in one or more of the following circumstances: (a) if the park owner or the occupant gives notice of termination under this Part, (b) if the Civil and Administrative Tribunal makes an order terminating this agreement… 39 Termination on breach of agreement (1) The park owner and the occupant agree that the park owner may give notice of termination of this agreement to the occupant if the occupant has breached a term of this agreement….
2. The Agreement included clauses in the same terms as, or terms similar to, clauses 17, 18, 36 and 39 of Schedule 1 to the Act.
3. The Park Rules included the following provision:- Dog friendly - No dogs are allowed in our cabin accommodation. Dogs welcome on sites ONLY at the discretion of management. Dogs must be kept on leash at all times and pet waste is to be disposed of immediately.
4. We turn now to the first of the three grounds advanced by the Appellant in the appeal proceedings.

Insufficient opportunity to be heard

1. In her Notice of Appeal and at the appeal hearing, the Appellant claimed that she was not given a sufficient opportunity to present her case to the Tribunal. She alleged that the Tribunal member did not read the witness statements that she had submitted, that he scarcely spoke to her, that the only contribution that she was permitted to make was to answer a few questions and that she was 'waiting to be heard', but her 'turn never came'.
2. After listening to the audio-tape of the Tribunal hearing that the Respondent provided to us, we are satisfied that this description of the Tribunal's willingness to consider the Appellant's evidence and hear her submissions is not correct. It is apparent that the Tribunal member allowed both parties to present their evidence, that he gave consideration to this evidence and that he allowed them to ask questions and make comments relating to each other's evidence and submissions.
3. We reject this claim by the Appellant that she was not afforded procedural fairness at the Tribunal hearing.

Unjustified conclusion that the Agreement had been validly terminated on the ground of breach of its terms by the Appellant

1. This was the most substantial of the Appellant's three grounds of appeal.
2. The alleged contraventions of the Agreement. The Respondent's claim to be entitled to terminate the Agreement was based on two forms of breach of its terms.
3. The first of these was that the Appellant had not kept her female dog, a whippet called Sensa, on a leash at all times, as required by the Park Rules.
4. The second was that since on more than occasion Sensa had behaved aggressively towards people in the park, the Appellant had contravened the prohibitions, stated in clauses 17 and 18 of Schedule 1 to the Act and in equivalent clauses of the Agreement, against interfering with the reasonable peace of people in the park, interfering with their 'proper use and enjoyment of the park' and 'causing a nuisance'.
5. The Respondent's written evidence. The items of written evidence on which the Respondent relied in order to substantiate these allegations before the Tribunal were as follows.
6. A letter dated 17 November 2012 from the then managers of the Park to the Appellant contained allegations that she had broken the Park Rules more than once by failing to keep her dog on a leash and that the dog had been seen with a rabbit in its mouth. The letter stated that the Appellant's behaviour in this regard was 'unacceptable' and that any 'further incidents of this nature' might lead to termination of her agreement with the Respondent.
7. An 'Incident Report' dated 9 May 2014 and signed by the then manager of the Park, Mr Daniel Trim, described the following alleged events occurring on the morning of 9 May 2014. Mr Trim saw Sensa running around the Park without being on a leash. Sensa then approached him and 'bailed him up', barking, growling and snapping at him. Because he believed that he was about to be attacked, he called out to the Appellant to 'get her dog', but Sensa 'ignored all her commands'.
8. In this Report, Mr Trim stated also that on a previous occasion, 'over the Easter break', Sensa had 'bailed him up'. He informed the Appellant that if this happened again, he would 'have to act upon it'.
9. Mr Trim did not attend the Tribunal hearing. At the appeal hearing, Mr Scarborough advised us that on 4 September 2014 he had left his employment with the Respondent and that the Respondent had had no further communication with him.
10. A brief statement dated 18 July 2014 by Mr Ray Britton, an occupant of the Park, was to the effect that while on that date he had his dog out in the Park on a lead, another dog, which was not on a lead, came barking and growling at them. A person who apparently owned this dog had to chase it in order to put a lead on it.
11. Statutory declarations dated 25 August 2014 by Mr Adam Robinson and by Ms Brooke Trim (who referred to Mr Robinson as her boyfriend) provided accounts of what appeared to be this incident, in which they identified the barking dog as Sensa and its owner as the Appellant.
12. The written evidence put before the Tribunal by the Appellant. This evidence included four statutory declarations, in which the deponents stated that during a significant period of contact with Sensa they had never witnessed any aggressive behaviour on her part and that any barking in which she engaged was friendly. These declarations, which were signed on dates between 31 August and 26 September 2014, were by Ms Elaine Blackburn, Ms Jennifer Curtis, Mr Allan Hunter and Ms Marlene Kozlik (the mother of the Appellant).
13. The Appellant also submitted statutory declarations that she herself had sworn. In these declarations, she gave detailed accounts of the incidents on 9 May and 18 July 2014, in the course of which she maintained that Sensa's behaviour had not been aggressive at all. She stated also that Mr Trim had permitted her to let Sensa off the lead at times during winter, when the Park was relatively quiet, and had welcomed Sensa's conduct in catching rabbits from time to time. She claimed that she had been keeping Sensa in an enclosure, but that at times a person or persons unknown removed the shoelace with which she had tied up the gate, thereby allowing Sensa to escape into the Park without a lead.
14. A further statement by the Appellant was that she had a physical disability and that Sensa had been trained to be an assistance dog for her.
15. The oral evidence at the Tribunal hearing. This evidence included statements by the Appellant that she had allowed Sensa to wander off leash in the Park when Mr Trim permitted this and that the reason why Sensa was able to approach Mr Trim on 9 May 2014 was that some person must have untied the shoelace with which she fastened the gate. Mr Scarborough maintained that Mr Trim had told him many times of Sensa being off leash and of complaints about this by Park patrons.
16. The Tribunal's conclusions on this question. In its oral reasons for decision, the Tribunal observed that Mr Scarborough's evidence was hearsay only and that Mr Trim's Incident Report was not 'the super best evidence'. It held, however, that this Report was 'first hand evidence' and was 'not contradicted'. It added that this evidence was indeed supported 'to some extent' .This was on account of acknowledgments by the Appellant that unbeknownst to her Sensa must have escaped from the enclosure that she had constructed and that Mr Trim had been 'upset' after the incident.
17. The Tribunal also stated that the question whether Mr Trim ever permitted the Appellant to let Sensa off leash was irrelevant. The reasons for this, it held, were that the issue that it had initially to determine was whether the Respondent's notice of termination of the Agreement on the ground of contravention by the Appellant 'had a basis', and that if this was the case the Tribunal had no alternative but to rule that the Agreement had been terminated.
18. With reference to this last ruling, it stated as follows:- The Tribunal in that circumstance has absolutely no discretion. The site agreement has been terminated by that notice.
19. Further written evidence adduced by the Appellant in the appeal proceedings. This evidence comprised statements by Ms Andrea Simmons dated 23 February 2015 and by Mr Nicholas Hutchinson dated 2 March 2015. Each of these witnesses stated that they had never known Sensa to be aggressive. Mr Hutchinson stated that he had heard Mr Trim say to the Appellant at an unspecified time that he realised that Sensa had only been 'playing' with him and had not been aggressive.
20. The Appellant's submissions in the appeal. The principal arguments advanced by the Appellant were as follows.
21. First, we should be satisfied on the evidence that Sensa was not aggressive towards Mr Trim during the incident on 9 May 2014, but was 'only playing'. The reasons why we should make this finding were these: (a) Mr Trim did not provide a statutory declaration verifying the contents of his Incident Report; (b) according to Mr Hutchinson, Mr Trim had used the phrase 'only playing' when describing Sensa's behaviour; (c) there were no other witnesses to the incident; and (d) many other witnesses testified that Sensa did not behave in an aggressive manner.
22. Secondly, we should find that Mr Trim had permitted Sensa to be off leash in the Park in certain circumstances: for example, during winter, when there were not many people there. We should not give any weight to Mr Scarborough's claim to the contrary because in his role as a director of the Respondent, which owned a number of holiday parks, he never visited the Park.
23. Thirdly, we should accept the Appellant's testimony that she had built an enclosure after being warned about the consequences of letting Sensa be off leash in the Park and that the reason why Sensa was occasionally outside the enclosure was that a person or persons unknown had untied the shoelace which kept the gate closed.
24. The Respondent's submissions in the appeal. A point of law addressed by Mr Scarborough was the correctness of the Tribunal's statement that if it was satisfied that the Appellant had breached the Agreement, it had no choice but to rule that the Agreement had been terminated. He argued that this statement did indeed reflect the position with regard to casual occupancies such as the Agreement had created. By contrast, he said, permanent residents of caravan parks had 'tenancy rights' under s 113 of the Residential Parks Act 1998.
25. So far as the evidence was concerned, Mr Scarborough relied principally on the Appellant's admission at the Tribunal hearing that Sensa had been off leash in the Park, at least at the time of the incident on 9 May 2014. He argued also that we should take account of the evidence that on 18 July 2014 Sensa was again off leash, even though this date was after the notice of termination had been served on the Appellant.
26. He also made the following points: (a) the Appellant was aware of the provisions of the Park Rules and had been warned about the consequences of contravening them: (b) Ms Marlene Kozlik (the Appellant's mother) had testified that in the incident on 9 May 2014 Sensa had been 'barking at' Mr Trim; (c) the Respondent was bound to acknowledge that Mr Trim had not furnished any evidence bearing on the Appellant's claim that on occasions he permitted Sensa to be off leash in the Park; and (d) since the notice of termination was based on the incident of 9 May 2014, the only relevance of the incident of 18 July 2014 was that it showed the Appellant's failure to keep Sensa under proper control to have been an ongoing problem.
27. Our conclusions. We will deal first with the question of law on which Mr Scarborough (but not the Appellant) furnished submissions. The Tribunal's ruling on this question was essential to its conclusion (formulated in Order 1) that the Agreement had been validly terminated by the notice dated 6 June 2014.
28. The proposition that, contrary to this ruling, the Tribunal does have a discretion to decide that an occupation agreement has not been terminated even though a breach of it by the occupant has been established might appear to be substantiated by the use of the word 'may' in the opening words of s 27 of the Act. Relevantly, this provision states that the Tribunal 'may', when dealing with an application under s 26, 'make… (f) an order terminating the occupation agreement and an order for possession of the site'.
29. In Cain v New South Wales Land and Housing Corporation [2014] NSWCA 28, a relatively recent decision relating to residential tenancies under the Residential Tenancies Act 2010, the Court of Appeal held that the word 'may', in the context of a provision (s 91) authorising the Tribunal to terminate such tenancies, was to be interpreted as conferring, in accordance with its natural meaning, a discretion as to whether or not to take this step even though a ground of termination had been established.
30. In this section, however, and in s 113 of the Residential Parks Act 1998 (to which Mr Scarborough referred), the subsection stating that the Tribunal 'may' make an order terminating a tenancy or an occupancy agreement is accompanied by one or more provisions setting out the considerations that the Tribunal must or may take into account when deciding to make such an order. No such provisions appear in s 27 or in any other section of the Holiday Parks (Long-term Casual Occupation) Act 2002. The function of s 27 appears instead to be to list the forms of order that the Tribunal may make when granting relief in the context of an application under s 26.
31. Furthermore, s 26 itself does not expressly state that a park owner or an occupant can apply for an order terminating an occupation agreement or granting possession of a site. The range of orders that may be sought is limited to orders 'in respect of' a breach of an agreement or 'in respect of' 'a disagreement… concerning a matter that could form the basis of' such a breach. In addition, s 28 makes it clear that possession of a site may be recovered without any order to this effect being made by the Tribunal.
32. For these reasons, we incline to the view that the interpretation of s 27 that the Tribunal adopted is correct. The Tribunal has jurisdiction to determine whether or not an alleged breach of an occupation agreement took place and to make appropriate orders following from this finding. But it does not have a discretion to decide that, even though it has made a finding of breach by an occupant, the park owner should not be entitled to recover possession of the site.
33. Order 1 of the Tribunal was a declaration that the Agreement was validly terminated by the notice dated 6 June 2014. This notice was based on the Respondent's claims that the Appellant had breached the Agreement and that under the Agreement this was a ground for terminating it. Order 1 therefore accorded, in our opinion, with the jurisdiction conferred by the Act on the Tribunal and with the interpretation of s 27 that we have just outlined.
34. We express these conclusions in a tentative manner because the relevant question of law was not addressed in the Appellant's submissions and received only limited attention in those of the Respondent. These conclusions are, however, sufficient to support a determination that on this important aspect of the Tribunal's jurisdiction, no error of law on the part of the Tribunal has been established.
35. Our conclusions on the Appellant's challenge to the Tribunal's finding that she contravened the Agreement may be briefly outlined. That finding was to the effect that, as she herself acknowledged, Sensa had on at least one occasion been off leash within the Park, in contravention of the clause in the Park Rules requiring dogs to be on a leash at all times.
36. The evidence that the Appellant put before the Tribunal and before us did not actually contradict this finding. Instead, it comprised evidence as to the reasons why this form of contravention occurred (specifically, that Mr Trim permitted this at times and that the gate of the enclosure had been opened) and assertions by a number of witnesses contesting a finding that, in fact, the Tribunal did not make - namely, that on account of aggressive behaviour by Sensa, the Appellant had contravened the clauses of the Agreement that prohibited interference with the peace and enjoyment of the Park by other persons and causing or permitting a nuisance.
37. For these reasons, we reject the Appellant's challenge to the Tribunal's conclusion that the Agreement had been validly terminated.

Unjustified conclusion that the Appellant's goods had been abandoned

1. In this context, the only claims apparently made by the Appellant were that she did not believe that her conduct in relation to her caravan and her other goods that were on the site amounted to abandonment of them and that she wished to be able to sell them by auction. She pointed out also that the caravan was of substantial size and could not easily be removed.
2. Mr Scarborough submitted that these goods were to be treated as abandoned because the Appellant had not removed them by the date (22 June 2014) required in the notice of termination. The mode of dealing with them stipulated in the Tribunal's orders accorded, he said, with the terms of s 34 of the Act. He added that caravans brought into holiday parks under the Act were required to be removable.
3. In our judgment, the Appellant's submissions provide no basis for setting aside the Tribunal's declaration (in Order 2) that the Appellant's goods were abandoned on 22 June 2014. We also consider that its orders providing for their disposal (Orders 3, 4 and 5) and for the payment of a site fee (Order 6) were validly made.
4. It follows that this ground of appeal must fail.

Our orders

1. We order as follows:- 1. Except as stated in Order 3, the appeal is dismissed. 2. The stay order granted on 4 November 2014 is lifted. 3. Orders 3, 4 and 6 made by the Tribunal on 25 September 2014 are amended by deleting the phrase '23 October 2014' and substituting '7 May 2015' in its place. 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: 18 June 2015