The applicants are the owners of the Khancoban Lakeside Caravan Park and the respondent is a site holder in the park.
On 20 October 2015 the applicants issued an application (later amended) seeking the following orders:
1. An order in respect of a breach of the occupation agreement (s 26 of the Holiday Parks (Long-Term Casual Occupation) Act 2002 ("the Act");
2. An order that the site has been abandoned (s 32 of the Act);
3. An order for compensation caused by abandonment (s 33 of the Act);
4. An order for disposal of abandoned goods (s 34 of the Act);
5. An order for retrieval of uncollected goods (s 35 of the Act);
6. An order for payment of an outstanding fee (s 27 (1) (b) of the Act) and
7. An order to terminate the occupation agreement, order for possession of the site (s 27 (1) (f) of the Act).
The Act applies to an occupation agreement regarding 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." (s5 (1)).
The evidence clearly establishes that the occupation agreement met these criteria, the respondent having commenced occupation of the site by agreement with a prior owner of the park. The Tribunal has jurisdiction to hear the application.
The question of the amount of site fees owing could not be determined as the applicants did not produce a ledger or give any detailed evidence of that issue. They referred to an undated note from a previous owner alleging site fees had not been paid for the previous three years and a letter dated 18 August 2015 from the Tumbarumba Shire to the respondent requiring payment of site fees from 1 July. There was no evidence of whether or not these were paid. They said they took over the park in August and had not been paid any site fees by the respondent.
The applicants bear the onus of proof and the Tribunal cannot find that thy have discharged that onus.
The next matter to be determined was that of possession of the site.
As the site agreement is an oral one by virtue of s 15 (3) of the Act its terms are set out in Schedule 1 to the Act. Clause 36 sets out the circumstances in which the site agreement can be terminated those argued by the applicants being (a) if the park owner or the occupant gives notice of termination …(36(a)) and, if the occupant abandons the site 36(f)).
As to the former the applicants tendered a letter purporting to terminate the site agreement. This alleged a failure to pay site fees, being a breach of the site agreement as the ground for termination and was an exercise of the applicants' right under clause 39 of Schedule 1:
"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 park owner and the occupant agree that a notice of termination given under this clause must not specify a day earlier than 7 days after the day on which the notice is given as the day on which vacant possession of the site is to be or will be delivered up to the park owner."
The letter was dated 17 September 2015 and nominated 25 September 2015 as the date on which the respondent was required to vacate the site. The evidence was that the letter was posted to the respondent on 17 September. Pursuant to s 76 of the Interpretation Act 1987 unless evidence sufficient to raise doubt is adduced to the contrary, service of the letter is taken to have been effected on the fourth working day after it was posted (i.e. on 23 September). There was no other evidence given and thus the letter was deemed served on 23 September so the respondent was given only two days' notice to vacate the site. Hence the Tribunal cannot find that the site agreement was terminated by notice.
In oral evidence the applicants advanced four matters which they said established that the respondent had abandoned the site. These were:
1. non-payment of site fees;
2. that the only contact with the respondent was in August or early in September this year when they discussed what could be done to improve the site;
3. that the respondent did not respond to attempts to contact him; that he "was like a phantom";
4. that the site is an eyesore and the respondent has failed to attend to an order issued by the Shire in 2013 and requiring demolition of the rear deck on the site. The evidence of this was contained in a letter from the Shire to the applicants dated 25 November 2015. There was no copy of the order put in evidence.
In addition in written submissions they referred to a note from a previous park owner which referred to this site and the respondent saying "has abandoned cabin…no notice, is still considered a tenant" and "has not paid for last 3 years (at least)".
The respondent gave evidence that in August/September he had discussions with the applicants regarding his future occupation of the site and his management of it. He said these resulted in him being told he would have to move to another site. This was due to the layout of the park not meeting some Shire regulations. In addition he was told that work needed to be done on the present structure apparently based on the Shire's order in 2013. The respondent said he had not undertaken any work to improve the site as a move to another site would mean it would be pointless doing so. As to that order, the respondent said he was aware of an order issued by the Shire but said his recollection was that it issued to a previous owner or lessee of the park and not to him. In the absence of a copy of the order and events flowing from its issue it was impossible to make any determination regarding this matter.
In Jayawardena v Yue [2009] ACAT 5 the Tribunal said "the Act does not define what constitutes an "abandonment" and so must be taken to have adopted the definition of the term at common law. At common law abandonment occurs when a tenant chooses to vacate the premises without lawful cause during the fixed term. " That application was one under the residential tenancies legislation and the Act in this matter also is silent on the meaning of "abandonment".
The respondent was adamant that he had not abandoned the site.
By the terms of the legislation the respondent cannot personally occupy the site at all times; in other words he will be away from the site for periods of time. Thus the fact that he may not be personally in occupation is not determinative of an abandonment. Indeed, "the fact that a tenant does not personally choose to reside in a premises does not necessarily mean they have abandoned it" (Alice Williams v Onerwal Local Aboriginal Land Council, NSW Aboriginal Land Council, Susan Merritt, and Ngunnawal ACT & District Indigenous People's Aboriginal Corporation [1997] NSWRT 137). The applicants did not offer any evidence of the respondent's personal occupation of the site and for his part the applicant said he has contracts which require him to work in the forests meaning he is away for lengths of time and also he can be difficult to contact when away.
At all times the site has at been occupied by the respondent's van and associated structures. That of itself does assist the respondent to answer the applicants' contention as they can be characterised as goods (s 31 of the Act) which may be abandoned and so other indicia must be present to determine the matter.
Non-payment of site fees is one matter of relevance which, coupled with the absence of or lack of contact with an occupant, can be strong evidence of abandonment.
As noted above there were no financial records of the site fees provided. For his part the respondent produced an order of the Tribunal made on 20 February 2014 in matter RP 13/38794 that "the park owner shall credit the resident's rent account with the sum of $76.00 being a rent reduction of $2.00 per night for 38 nights because of interference with the resident's (this respondent) electricity supply for that period (which ended on 8 August 2013)". Also, the respondent said the prospective change of site was of some moment. The present site is near the water which the respondent says makes it a far more desirable site than one in the area to which he expects having to move. A consequence of this, to the respondent's mind at least, is the need to negotiate a site fee.
Other than the reason for being difficult to contact advanced by the respondent it is of note that on the application to the Tribunal the applicants said they did not have either a daytime telephone number or an email address for the respondent. There was no evidence given of any attempts to contact him by other means and so the Tribunal is unable to draw any inference that the applicants were being ignored as evidence of abandonment.
The applicants tendered some photographs of the site as evidence of abandonment. In Darren and Julia Patterson v David Dawson [2015] NSWCATAP 31 the appeal panel said "an abandonment of the lease is a particular form of repudiation in which the tenant indicates their intention to be no longer bound by the lease by, physically leaving the property, refusing to pay rent and refusing to maintain the property to the extent required of tenants in the lease".
Here the site agreement provides "The occupant agrees:
(a) to keep the site reasonably clean, and
(b) to notify the park owner as soon as practicable of any damage to the site, and
(c) not to intentionally or negligently cause or permit any damage to the site or any other part of the holiday park, and
(d) when this agreement ends, to leave the site as nearly as possible in the same condition (fair wear and tear excepted) as when this agreement started."(clause 19 of Schedule 1 to the Act).
The photographs show that the parts of the site depicted therein appear to be unclean and dilapidated. In addition the applicants relied on a letter from Tumbarumba Shire following one of its officers inspecting the site on 19 November 2015 describing the site as very dilapidated.
However, the Tribunal does not consider that the process of making a finding regarding abandonment is a process of ticking boxes. Each case must be considered on its merits and in the light of all of the evidence.
In this instance, the Tribunal does not consider that the applicants have established that the respondent has abandoned the site. For his part the respondent denies that he has done so, the applicants did not offer evidence of the respondent's personal occupation (or otherwise) of the site, while the other matters referred to above must be considered in the context of the discussions between the parties. Communication between the parties is not a determinative factor. There is no evidence of the history of the site and its management from which the inference of abandonment could be drawn. As to the situation today because of the projected move to another site it is understandable that the respondent would not do any work on the present site.
The application is dismissed, as the Tribunal is not satisfied (at the civil standard of proof) that the grounds required to make the orders sought have been established.
G Bryant
General Member
Civil and Administrative Tribunal of New South Wales
6 January 2016
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: 12 February 2016