On 1 May 2018, the Tribunal made a specific performance order for the benefit of the applicants. The Tribunal determined that in order to comply with s 77(3) of the Residential (Land Lease) Communities Act (NSW) (the "RC Act"), the respondent (the "Park Operator") could not charge for electricity consumption, in respect of the applicants' residential site at Rivergum Holiday Park, Corowa NSW (the "Park"), in amount(s) which are any more than the amount(s) charged by the utility service provider(s) who provide the service for the quantity of electricity used by the applicants for their residential site at the Park.
The Tribunal's specific performance order was consistent with Silva Portfolios Pty Ltd trading as Ballina Waterfront Village & Tourist Park v Reckless [2018] NSWSC 1343 (4 September 2018) where the Supreme Court of New South Wales affirmed the decision of the Tribunal's Appeal Panel in Reckless v Silva Portfolios Pty Ltd t/as Ballina Waterfront Village & Tourist Park [2018] NSWCATAP 80 (3 April 2018).
Also on 1 May 2018, with extensions of time on 4 June 2018 and on 5 September 2018 (such extensions to take account of the Park Operator's appeal to the Supreme Court in respect of the Appeal Panel decision in Reckless), the Tribunal made orders and directions for the parties to exchange documents, including written submissions. The orders and directions related to other appropriate relief having regard to the fact that a specific performance order had been made by the Tribunal on 1 May 2018. The intent of the orders and directions was for the parties to provide submissions as to the manner of calculation of any order which might made pursuant to s 157(1)(d) of the RC Act; i.e. an order which required the Park Operator to refund to the applicants an amount of money because of the applicants having been charged for electricity usage in a manner which was not consistent with s 77(3) of the RC Act.
The Tribunal took the course of inviting further submissions because it was not satisfied that all available evidence had been put before it to determine the nature and extent of the other relief required in the circumstances of the case. The Park Operator had vehemently objected to the methods of charging for electricity usage as put by the applicant's representative at the hearing on 6 February 2018. The Tribunal determined in light of its other findings made on 1 May 2018, that the parties, but particularly the Park Operator, should have an opportunity to be heard on other appropriate relief and to provide further submissions and any supporting documents (including other evidence). It was also an opportunity for the parties to have further time to explore resolving their dispute particularly as to the calculation of any sum of money to be refunded to the applicants by the respondent.
The parties were directed by order 4 made on 1 May 2018 to address in their written submissions whether pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the "NCAT Act") the Tribunal should dispense with a further hearing requiring the parties to be present and proceed to determine the applicants' claim for an order to pay money on the papers.
On 31 May 2018, the Tribunal received the applicants' written submissions and supporting documents.
The provision of the Park Operator's submissions was delayed pending the Supreme Court decision in Reckless. On 4 October 2018, the Tribunal received a written submission of four (4) pages dated 27 September 2018 from Mr Philip Smith, the authorised representative of the respondent.
On 24 October 2018, the Tribunal received from the applicants a written submission in reply of three (3) pages.
The parties also relied upon the documents provided for the formal hearing on 6 February 2018.
The Park Operator's submissions did not address whether an order should be made dispensing with a hearing under s 50(2) of the NCAT Act. On the other hand, the applicants' submissions received 31 May 2018 expressly supported a procedure whereby the Tribunal's decision on any further orders for the application is made on the basis of the parties' written submissions and without a further formal hearing in a Tribunal hearing room.
The Tribunal did not receive any written request from the Park Operator for the application for further orders to be listed for formal hearing. The Tribunal was satisfied that the applicants' application for further orders could be adequately determined in the absence of the parties by considering the written submissions referred to. Accordingly, the Tribunal found that it was an appropriate exercise of its discretion under s 50(2) of the NCAT Act to dispense with a formal hearing requiring the parties to be present and to proceed to determine the lessor's application for costs on the papers.
[2]
Some relevant background facts
There are approximately 18 permanent residential sites at the Park, including the applicants' site. There are also a number of annual powered sites, cabins, and studios, and powered camping and caravan sites at the Park. The Park has common facilities and a manager's residence which all consume electricity.
Momentum Energy Pty Ltd ("Momentum") is the respondent's utility service provider.
The applicants' residential site is connected to a parent meter with the National Metering Identifier ("NMI") "NDDD00GH429". The meter with NMI NDDDD00GH429 records electricity provided by Momentum to the embedded network at the Park: see [4] and [5] of the Park Operator's written submissions received 4 October 2018.
Momentum issues invoices to the respondent for the supply and/or use of electricity in the Park's embedded network on a monthly basis.
The applicants, along with other home owners in the Park, pay a daily $1.26 Service Availability Charge to the respondent in accordance with Regulation 13 of the Residential (Land Lease) Communities Regulation 2015 (NSW). Regulation 13(1) provides:
The maximum service availability charge payable, in respect of any period, by a home owner to the operator for the supply of electricity at a residential site is the amount that would have been payable for the period if the electricity had been supplied to a small customer under a standard retail contract of the applicable local area retailer at standing offer prices.
[3]
The parties' competing positions on the applicants' case for further orders
The applicants relied upon evidence that electricity usage at the Park is provided by Momentum at the rates of:
1. 3.82 cents per kilowatt hour for off peak usage;
2. 6.47 cents per kilowatt hour for peak usage; and
3. 6.47 cents per kilowatt hour for shoulder usage.
Referring to the evidence contained in annexure I of the respondent's documents for the purposes of the hearing on 6 February 2018, the applicants submitted that:
1. In the period from 15 January 2016 to 21 September 2017, the applicants paid to the Park Operator a total of $2,251.51 for electricity usage (not including service availability charges);
2. The charging of the applicants by the Park Operator for electricity usage during that period was based on a measure above $0.23 per kilowatt hour (Kwh);
3. During the said period, the original meter reading was 13,260 kilowatt hours and the end meter reading (i.e. on 21 September 2017) was 22,626 kilowatt hours;
4. Accordingly, in the period from 15 January 2016 to 21 September 2017, the applicants used electricity on their residential site in a quantity of usage which is referrable to 9,366 kilowatt hours;
5. Taking the Momentum peak usage rate as the measure (i.e. $0.0647 per Kwh), 9,366 kilowatt hours charged at a rate of 0.0647 cents equates to $605.98;
6. In the circumstances, the appropriate refund for that period is $1,645.53, being the difference between the amount actually paid to the Park Operator in that period ($2,251.51) and the calculation of electricity usage charges in that period by Momentum at its peak usage rate ($605.98).
The applicants seek an order for the respondent to refund $1,645.53 and a further order: "outlining how electricity usage charges are charged to the (applicants) going forward, so they do not have to go through this lengthy resolution process again" (see final paragraph of applicants' written submission received 31 May 2018).
The Park Operator submitted that the applicants' application for further orders should be dismissed. It argued that it is entitled to charge the applicants what it is charged for the supply and/or use of electricity at the applicants' residential site; that Momentum, the relevant utility service provider, charges the Park Operator for electricity on a "commercial basis"; and that all charges levied to it by Momentum may be passed on to the applicants. In the Park Operator's submission, those charges include:
1. Energy Charges comprising Daily Charge, Off Peak, Peak and Shoulder;
2. Metering Charges;
3. Network Charges comprising Network Daily Charge, Off peak, Peak and Shoulder;
4. Other Industry Charges including AEMO ancillary charge, AEMO pool fees, LRET, NSW ESS Charge and SREC.
In essence, the Park Operator submitted that to obtain further relief the applicants had to establish the amounts charged to them for electricity use are more than what had been charged by Momentum to the Park Operator having regard to all the charges that have been levied on Momentum's commercial bills; and further that "mathematical certainty" is required before the Tribunal can be satisfied there is an amount to be refunded to the applicants having regard to the requirements of s 77(3) of the RC Act.
The Park Operator also submitted that the Tribunal could not provide a methodology for electricity usage charges "going forward", as sought by the applicants. It said that the Tribunal could not do so because future electricity charges are subject to change by the relevant utility provider.
[4]
What did the Tribunal have to decide?
The Tribunal was asked to determine whether the applicants are entitled to any relief in the form of a refund by reason that the applicants have been charged an amount for the supply and/or use of electricity consumed at their residential site, that is more than the amount that the respondent has been charged for supply and/or use by the respondent's utility service provider.
Such determination involved consideration of these questions:
1. Has the Park Operator since 1 November 2015 (when the RC Act came into effect) charged the applicants for an amount of electricity usage that is more than what itself has been charged by the respondent's utility service provider?
2. If so, by how much has the Park Operator overcharged the applicants for the supply and/or use of electricity at their residential site?
3. Can the Tribunal provide a methodology for how electricity usage charges are charged in a manner consistent with the Park Operator's obligation in s 77(3) of the RC Act?
[5]
Decision on the questions for the Tribunal's determination
The Tribunal is satisfied that there is sufficient material before it to establish, on the balance of probabilities, that since at least 15 January 2016, the Park Operator has charged the applicants more than it has been charged by Momentum for the electricity that the applicants have used at their residential site.
The Tribunal accepts the applicants' evidence and submissions (outlined above), as to their electricity usage, and the respondent's charging of the applicants for that usage at the applicants' residential site, in the period from 15 January 2016 to 21 September 2017.
Despite being afforded an opportunity to do so by the directions made on 1 May 2018, 4 June 2018 and 5 September 2018, the respondent did not put before the Tribunal any cogent evidence to refute the applicants' case for a refund in the amount of $1,645.53 for the period from 15 January 2016 to 21 September 2017. In particular, the respondent did not file and serve evidence (including expert evidence) from a consultant that offers its services to manage embedded networks and to calculate charges for customers. Aside from its own assertions and its criticisms of the applicants' suggested method of calculating an appropriate refund, the respondent did not adduce independent evidence to establish that it has not charged the applicants, or other home owners at the Park, any more for electricity usage at a residential site than what the Park Operator has been charged by Momentum.
The Tribunal is cognisant of the difficulty for the respondent; i.e. the Park Operator is charged for electricity as a commercial customer in respect of a Park with a mix of permanent and casual sites and common facilities; but the Tribunal further observes that such difficulty is ameliorated to some extent by the fact that the applicants' residential site is connected to a parent meter with NMI NDDDD00GH429.
In the Momentum accounts received by the respondent, the supply charges comprise energy charges, network charges, other industry charges and metering charges. However, it is the information under energy charges that relates to what the Park Operator is paying per Kwh for electricity usage (whether at off-peak, shoulder or peak rates). The information under the headings for network charges, other industry charges and metering charges are not per Kwh charges. Contrary to the Park Operator's submission, they are not charges to be considered in calculating electricity usage charges for the purposes of s 77(3) of the RC Act. In fact, they are charges covered by the daily service availability charges ($1.26 per day) that the Park Operator is entitled to charge the applicants under Regulation 13 of the Residential (Land Lease) Communities Regulation 2015 (NSW).
In further answer to the Park Operator's submissions, the Tribunal does not accept that it must calculate with "mathematical certainty" the amount of any refund ordered under s 157(1)(d) of the RC Act for non-compliance with s 77(3). The RC Act does not express any such certainty as a requirement in the calculation of a refund amount.
Moreover, the Tribunal has determined on the available material it is more likely than not that the applicants were charged for their electricity usage in the period from 15 January 2016 to 21 September 2017, more than what Momentum charged the Park Operator in that period. The Tribunal finds that the best available evidence as regards the manner of calculation of an amount referrable to that period to be refunded to the applicants, is as set out in the applicants' submissions and summarised at [18] above.
The Tribunal is comfortably satisfied that the applicant home owners would not have used electricity at the (higher) peak rates at all material times during the relevant period and that using the higher rate as the measure per Kwh is the most favourable means of calculation of electricity usage for the Park Operator.
The Tribunal finds that the applicants have made out a case for a refund of $1,645.53 for overpaid electricity charges in the period from 15 January 2016 to 21 September 2017. However, this finding is made on the basis of evidence as to specific facts arising from particular documents including the relevant Momentum accounts. Each case for orders in respect of a particular period will depend on its own facts. Should the parties be unable to settle their differences on electricity usage charges for the applicants' residential site from 22 September 2017, then the applicants will have to pursue any further claim(s) by separate application(s) to the Tribunal.
The Tribunal declines to provide a methodology to calculate home owners' charges "going forward", as sought by the applicants. The Tribunal is not able to devise a method of calculating usage charges that is compliant with s 77(3). It may be that the RC Act requires amendment to prescribe a method as has been done in respect of the service availability charge under Regulation 13 of the Residential (Land Lease) Communities Regulation 2015 (NSW).
The orders made reflect the Tribunal's findings as set out above.
[6]
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 March 2019
Parties
Applicant/Plaintiff:
Myles
Respondent/Defendant:
Holiday Retreats Australia Pty Ltd t/as Rivergum Holiday Park