Moloney v Taylor [2017] NSWCATCD 58 | Case summary

NCAT Consumer and Commercial|2017-02-16

The application for compensation

The Park Owner claims that as a consequence of the respondent's abandonment of the site, without removing the moveable dwelling or any of the other structures on the site, he has suffered loss. He says that the loss arises from his inability to relet the site, and from the costs which will be incurred in demolishing the moveable dwelling and the other structures.
In the previous proceedings the Tribunal found that the loss was a loss related to the park owner's costs in removing the abandoned goods. The Tribunal relied upon the ancillary power found in s 34 (2) (b) of the Act. Both the Appeal Panel and the Supreme Court have held that the Tribunal fell into error in doing so. The Tribunal accepts that s 34 (2) (b) does not authorise the Tribunal to make an order of compensation for the Park Owner's costs in removing the goods.
The Tribunal is satisfied that, having made an order under s 32, the Tribunal has power to make an order under s 33 which states: 33 Right of park owner to compensation where occupant abandons site (1) If an occupant under an occupation agreement abandons the site, the occupant is liable to pay compensation to the park owner for any loss (including loss of occupation fees) caused by the abandonment. (2) The park owner must take all reasonable steps to mitigate the loss and is not entitled to compensation for any loss that could have been avoided by taking those steps. (3) The Tribunal may, on application by the park owner, order an occupant to pay to the park owner any compensation (including compensation for loss of occupation fees) that it thinks fit.
The applicant states in his affidavit: "Due to the age, state and condition of the van (and also as a result of the damage done to the annex at the time when the respondent cleared it out and abandoned the site) in my opinion the van has no saleable value." and at paragraph 50: "I do not have the funds to pay to have her caravan and dwelling removed from the site."

Obligation to mitigate the loss

The respondent submits that, as the Park Owner does not give any evidence of any attempts which he has made to mitigate the loss which he claims he suffers as a consequence of the respondent abandoning the site, he should not be entitled to the amount he claims.
The respondent's expert evidence is that, apart from the caravan itself, the structures on site cannot be moved in one piece. Until the applicant has the benefit of an order from the Tribunal, he cannot mitigate the loss by removing the goods. Nor could he mitigate the loss by selling them, as until he has the benefit of the Tribunal's order, he cannot do so.
Sale of the moveable dwelling on site once the Tribunal makes an order might be a way of mitigating the loss, but the fact that the moveable dwelling cannot readily be moved is a breach of the standard agreement. There is no evidence to suggest that the structures comply with local government requirements. Nor is there any evidence that the van and other structures can easily be brought to a state which would ensure they comply with the standard agreement. In fact the expert evidence was that, apart from the van itself, the other items cannot be moved in one piece. The respondent does not suggest that the goods, if dismantled, have any saleable value, and there is no evidence before the Tribunal that they do.
The Tribunal is satisfied that there are no reasonable steps which could be taken to mitigate the loss.

Quantum of the claim

The respondent also argues that there is only one quote before the Tribunal. She herself brings no evidence that the caravan and structures could be removed at a lower price, except to say that the Park Owner has a bulldozer and could demolish them himself. The Tribunal is not satisfied that there is any obligation on him to do so.
The respondent says that she was denied access to the site for the purpose of obtaining her own quotation. Indeed, the Tribunal finds that on 24 and 26 February 2016 the respondent was denied the right to have an expert attend the site (see the correspondence annexed to the respondent affidavit dated 18 October 2016 at DAT 20). That was at the time of the appeal to the Appeal Panel in circumstances where the respondent had no entitlement to lead fresh evidence. However, after that date, on 4 November 2016, in respect of the current proceedings, the respondent's expert had access to the site, and there is no evidence that the respondent could not have had a second expert attend at that time. In the alternative, she could have provided a contractor with her expert's report and photographs, and obtained a quotation using those means. In these circumstances the Tribunal does not accept her submission that she was prevented from obtaining evidence of an alternate cost of removing the goods.
The Tribunal finds that the cost of removing the structures is a cost which arises because of the respondent's abandonment of the site and in the absence of any other evidence, accepts the applicant's quotation as a reasonable estimate of the cost of removing the structures from the site.

Prospective site fees

The compensation which the Tribunal has power to order under s 33 (3) includes compensation for loss of occupation fees. The Tribunal is satisfied that, until these proceedings are resolved, the Park Owner is unable to relet the site to any other occupant. However there is no evidence before the Tribunal as to whether the Park is fully occupied, and no evidence that the site would have been relet, had it been vacant. The respondent has not had access to the Park and has not herself had the use of the van or the site since 1 May 2015.
As the Tribunal is not satisfied that there has been any loss to the Park Owner, the Tribunal declines to make an order for the occupation fees from the date that the site was abandoned.

Arrears of site fees

In respect of the site fees claimed up until 1 May 2015, the Tribunal has before it an affidavit sworn on 27 October 2015 in which the Park Owner states that the fees were paid to 15 March 2015. On 3 October 2016 the Park Owner swore an affidavit and stated that the fees were paid to 15 February 2015. No explanation was offered for the change and when asked about the difference in cross examination, he stated "I must have made a mistake". He could not say which affidavit was correct. The Park Owners records, including any relevant rent ledger, were not produced to the Tribunal. The respondent denied owing any site fees up until termination of the agreement.
The Park Owner has the onus of proof in these proceedings. Bearing in mind the conflict in the sworn evidence and the absence of the rent ledger the Tribunal is not satisfied that the applicant has proven any entitlement to the arrears of site fees which he claims.

Short payment of site fees

The Park Owner also claims that the respondent short paid the fees from February 2014, when he says that the fees were increased, until the agreement was terminated. This was on the basis that the respondent had a copy of the Park Rules which notified all residents of the increase. The respondent denied having been given a copy of the rules but acknowledged that her mother had a copy which she saw. The respondent also relied upon the receipts which were given to her by the Park Owner as evidence that the increase in site fees had not been applied to her occupancy since the date of the increase. The applicant's explanation was that "we were in the Tribunal".
Section 23 of the Act applies and provides: 23 Receipts for occupation fees and charges (1) If occupation fees or other charges under an occupation agreement are paid in person, any person who receives payment of the fees or charges must, without delay, give to the person making the payment a receipt for the payment. Maximum penalty: 5 penalty units. (2) If occupation fees or charges under an occupation agreement are not paid in person, the park owner or the park manager must, on receipt of the fees or charges, prepare or cause to be prepared a receipt for the fees or charges and make the receipt available for collection by the occupant or post it to the occupant. Maximum penalty: 5 penalty units. (3) A receipt for occupation fees or charges is not a receipt for the purposes of this section unless it includes the following particulars: (a) the name and address of the holiday park, and the number of the site, (b) the period for which the fees or charges are paid, (c) the date on which the fees or charges are received, (d) the amount of fees or charges paid. (4) This section does not apply to occupation fees paid in accordance with an agreement between the park owner and the occupant into an account at an authorised deposit-taking institution nominated by the park owner.
In the circumstances, the Tribunal is not satisfied that it is appropriate to make an order for the short payment of the fees. The respondent was entitled to rely upon the receipts given as evidence that her fees were paid to the date indicated in the receipt. The applicant should not be entitled to make a claim, after termination of the agreement, for monies not claimed during the term of the agreement.

Late fees

Section 21 precludes the Park Owner from demanding, requiring or receiving any monetary consideration for or in relation to , inter alia, continuing an occupation agreement, other than occupation fees, any other fees that the occupant agrees or has agreed to pay under the occupation agreement, or charges that may be prescribed by the regulations. The late fees are charged pursuant to the Park Rules. The Tribunal is not satisfied that they are charges which the respondent has agreed to pay under the occupation agreement and the Tribunal declines to make an order in respect of them.

Extension of time

An application for orders under s 34 or s 35 is required, by s 36, to be brought no later than 28 days after the date on which the park owner gains possession of the site, in this case 1 May 2015. The application was not lodged until 25 August 2015. However, the Tribunal has power under s 41 of the Civil and Administrative Tribunal Act 2013 to extend time. In applying the criteria set out by the Appeal panel in Jackson v NSW Land and Housing Corporation [2014] NSW CATAP 22, the Tribunal is satisfied that it is appropriate to extend time, as to do otherwise would leave the Park Owner unable to dispose of the goods left on the site.

Order under s 34 (2)

The Tribunal finds that the respondent, having abandoned the site, has left on the site the moveable dwelling and other structures, along with a fridge, books and other assorted items. The Tribunal finds that the goods, including the moveable dwelling, are abandoned goods. The Tribunal accepts the evidence of the Park Owner that the goods have no saleable value. It is noted that whilst the respondent asserts that the moveable dwelling could be sold, she brings no evidence to support that submission. In these circumstances the Tribunal authorises the removal, destruction or disposal of all goods left on the site.

Costs of the previous proceedings

In the decision dated 5 January 2016, the Tribunal set out the reasons for declining to make a costs order in respect of the original proceedings. The Tribunal restates those reasons and declines to make a cost order in respect of the original proceedings.

Costs of these proceedings

The applicant seeks the costs of these proceedings. He has been partially successful. The Tribunal will call for submissions as to costs. Those submissions should address the issue as to whether the cost decision should be made on the papers, or whether a hearing is required.

Orders

Pursuant to s 32 of the Holiday Parks (Long Term Casual Occupation) Act 2002 ("the Act") the Tribunal declares that site 63 was abandoned by the respondent on 01 May 2015.
Pursuant to s 33 of the Act the Tribunal orders Deborah Anne Taylor to pay Charles James Maloney the sum of $19412.80 immediately. Reasons: compensation for abandonment of the site, being the cost of removal of the abandoned goods.
Pursuant to s 34 (2) of the Act the Tribunal finds that the goods, including the moveable dwelling on site 63 are abandoned goods and authorises the applicant to remove, destroy, sell or otherwise dispose of the abandoned goods.
(a)The applicant is to provide to the respondent and the Tribunal submissions as to costs, by 4 August 2017. (b)The respondent is to provide to the applicant and the Tribunal any submissions in reply by 18 August 2017. (c)The submissions are to include submissions as to whether a hearing is required to determine the cost application, or whether a decision can be made on the papers.
The balance of the application is dismissed. K Ross Senior Member Civil and Administrative Tribunal of NSW 28 July 2017

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 September 2017

Jurisdiction

In these proceedings, as directed by both the Appeal Panel and the Court of Appeal, the Tribunal must determine whether it has jurisdiction to consider and determine the application. The Tribunal accepts that the finding of jurisdiction in the original proceedings does not relieve the Tribunal of its obligation to consider the evidence advanced in this hearing, and to determine the issue afresh. There is no estoppel as alleged by the applicant (see Australian Education Union v Lawler [2008] FCAFC 135 where the Court held: "It is well-established that there will be no estoppel against an attempt by a party to hold a public authority or official within the relevant designated statutory jurisdiction or other limits.")
This involves an examination of the terms of the Holiday Parks (Long -Term Casual Occupation) Act 2002 ("the Act"), and in particular, a determination as to whether the occupation agreement is an agreement to which the Act applies. Implicit in this determination is a consideration of the terms of s 5 of the Act and the definition of "moveable dwelling".
The respondent gave evidence that she purchased the improvements on the site from the previous owner in about December 2005. She said that at that time: "The site comprised a caravan that was permanently fixed to an annex. The caravan did not have any functioning wheels or chassis. The annex included a concrete slab on the ground (approximately 8 metres long 8 metres wide, 10-15 centimetres thick at the rear and 20 - 30 centimetres thick at the front, and a rear carport with a tin roof, timber frame and steel posts set in concrete foundations. A roof covered the entire dwelling including the van. There was also a concrete footpath…..The exterior of the dwelling comprised a cement clad, timber and steel frame, louvre windows…..aluminium windows…. and gyprock lined walls."
The respondent gave evidence that, with the verbal consent of the applicant, a veranda and second slab was added, and was completed in 2010.
The applicant disputes the respondent's evidence and says that the van is not permanently attached to the annex. The slab is not 8 metres by 8 metres but 4.3 metres by 5.4 meters. It varies in thickness between 100 and 150 centimetres. The applicant says that the rear carport was not on the site at the time the respondent purchased the dwelling, but was added later. He says that the exterior is fibro over a timber frame. He says that in addition to the work which the respondent says she carried out she also put a roof over the whole structure, constructed the carport and altered the doors and windows to the dwelling. The applicant disputes that he gave any consent for the alterations to be made.
The respondent relied upon evidence from a builder with experience building manufactured homes. He gave evidence of what is currently on the site: In summary, four units make up the complete structure. Of these four units only one can be relocated as a complete unit, that being the caravan unit. The other three units (front patio, back carport cover and main cabin) cannot be moved as complete structures as they would break up and collapse as they are built on a concrete slab, and … the concrete slab cannot be relocated wholly as it is too big and bulky and would break up."
In order for the Tribunal to have jurisdiction, the agreement between the parties needs to satisfy s 5 of the Act: 5 Act applies to long-term casual occupants (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.
It is not disputed that, at the time the occupation agreement was entered into, the occupant had a principal place of residence somewhere other than the site. In the previous proceedings, the Tribunal found that there had been no subsequent agreement that the respondent could occupy the site permanently. The issue for determination in these proceedings is whether the agreement is one: "(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"
This requires consideration as to whether the occupant has installed on the site her "own moveable dwelling." Moveable dwelling is defined as follows: "moveable dwelling" means: (a) any caravan or other van or other portable device (whether on wheels or not) other than a tent, used for human habitation, or (b) a manufactured home, or (c) any conveyance, structure or thing (other than a tent or similar structure) of a class or description prescribed by the regulations for the purposes of this definition.
The Tribunal accepts the evidence of the respondent's expert and finds that the improvements on the site comprise: "front patio attached to a cabin with a caravan behind the cabin and a carport with a roof spanning over the caravan" together with the slabs referred to above.
The Tribunal accepts the expert's evidence and finds that the caravan, whilst rusty and arguably structurally unsound, could be loaded onto a tilt tray truck and relocated as one piece. The Tribunal is satisfied that the caravan on the site falls within the definition of a moveable dwelling.
The Tribunal accepts the evidence of the respondent's expert that the front patio could be dismantled, and taken away for reassembly, but could not be moved in one piece. Likewise, the back carport cover and main cabin would need to be disassembled and reassembled. The Tribunal accepts the expert's evidence that the concrete slab would not be able to be relocated, as a matter of practicality, and cannot be said to be moveable.
The Tribunal is satisfied that for the purpose of the definition, the question as to whether there is a moveable dwelling on the site needs to be determined at the date the occupant "installs the occupant's own moveable dwelling on the site". There was no dispute that at that date, there was on the site a caravan and the structure referred to as the cabin, along with a slab. Over the course of the respondent's occupation of the site other structures were added, particularly the path and veranda, and the doors and windows in the cabin were altered. Such is apparent from the photographs annexed to the applicant's affidavit at DAT5.
In its analysis of the definition of moveable dwelling the Appeal Panel stated that: "There is emphasis on a dwelling as defined being moveable. Although the definition of moveable dwelling includes a manufactured home, as defined, the manufactured home nevertheless would necessarily seem to be required to be moveable so as to be consistent with the overall provisions of the Act." and later "Arguably this matter is even further complicated because the structure includes a caravan which is likely to be characterised as moveable and a slab and roof top covering which may arguably be characterised as falling outside what is moveable."
That is indeed the situation. However the Tribunal is satisfied that the definition in the Act is satisfied because there is a moveable dwelling (a caravan) on the site. The fact that there may be other structures which are not moveable in whole pieces does not appear to the Tribunal to detract from the fact that there is a caravan, which was and is moveable.
The respondent submitted that the Tribunal would fall into error if it determined the issue by reference to part only of the structures on the site. The Tribunal notes however that the Act anticipates that other structures might be erected on the site in addition to the moveable dwelling. The Act requires by s 9 that a park owner provide a document to a proposed occupant setting out a number of questions and the answers to those questions, including: (k) What can the occupant put on the site besides the moveable dwelling (such as a carport or garden shed)? The answer to this should take into account: (i) what the park owner will permit (ii) what the local council will permit, and (iii) what regulations made under the Local Government Act 1993 will permit.
It was not disputed in this matter that there was no written agreement between the parties. In fact the evidence was that the Park Owner has difficulty in reading and writing and carried out almost all of his dealings in the park orally. There was no evidence that the Park Owner complied with his obligations under s 9.
The Tribunal does not accept the applicant's submission that it was nothing to do with the park owner what the respondent purchased when she purchased the moveable dwelling and other improvements and took occupation of the site. The applicant entered into the site agreement, albeit orally, in full knowledge that the respondent would be occupying the caravan and using the other structures on the site. There was an implied consent for her to do so, and for those structures to remain on the site.
The evidence discloses that the Occupant did not physically install on the site the caravan or the other improvements which existed at the date of commencement of the site agreement. They were in situ when she entered into the site agreement. The Tribunal is however satisfied that the Act anticipates the sale of moveable dwellings whilst in the park [see s 9 (i)] and it would not be consistent with a sensible reading of the legislation to find that moveable dwellings and any other structures would need to be removed from the site to be "installed" by an occupant in order for the Act to apply.
The Tribunal also notes that an interpretation of the Act by which it applies if there is a moveable dwelling on a site, even where there may be other structures erected which cannot easily be moved in one piece, is consistent with the intention of the legislature as discussed in the Second reading speech to introduce a scheme by which: "Uncertainties over the legal status of the parties are removed and sensible consumer protection is provided. The bill will extend a range of appropriate benefits to both occupants and park owners in long term casual occupancy arrangements and provide a desirable level of certainty."
The Tribunal finds that there is a moveable dwelling on the site, along with slabs which are not moveable and other structures which are moveable but not in one piece. The Tribunal finds that the presence on the site of the moveable dwelling means that the Act applies and the Tribunal has jurisdiction to determine the dispute.

Moloney v Taylor

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