Park v Tasman Tourism Pty Ltd

Factual Background

1. The Tribunal described the factual background to the case, and Mr Park's evidence in support of an oral site agreement with the previous operator, as follows (with some minor typographical corrections): "11 Mr Park's evidence was that he had purchased the three-bedroom, two bathroom unit (relocatable home) in the holiday park in approximately 2008 and had used the unit as a holiday unit. However, following his marriage break up, with the consent of the previous manager of the holiday park, Perry Whiston, he commenced occupation of the unit on a full-time basis. 12 Mr Park says that the holiday park owners were aware and consented to him residing in the holiday park on a full-time basis and he has done so without their objection continuously for eight years. He says that he had an oral agreement with them that he would be able to continue to occupy the site on a full-time basis. 13 The applicant's evidence was that he also recalls a conversation in December 2017 that he had with the park managers, Trent and April Whiston, who assured him that he could remain as a permanent resident for as long as he chose to. 14 … 15 The applicant's documents include evidence that his home address is listed as the holiday park on all of his documents, including government documents such as his Medicare information. The applicant's documents include references from other occupants or former employees of the holiday park which confirm that the applicant resides at the holiday park on a full-time basis. 16 The applicant's evidence is that the licence agreement given by the local Council in 2019 approved 8 permanent resident sites. The applicant says that he is included in these numbers in relation to an approved permanent resident."
2. Mr Park told the Tribunal that his oral site agreement was made with the previous operator in about November 2012. He said that he had continued to reside at his relocatable home on a permanent basis for more than eight years and there had never been any steps taken by the park operators to seek to enforce any obligations in relation to the HPA, i.e. sought to restrict the time that he stayed there.
3. Mr Park gave evidence that he had purchased the relocatable home in approximately 2007 and had used the caravan park as a holiday destination. He acknowledged that after he commenced occupation of his site on a full-time basis, he continued to pay the same site fees as he had when he occupied the site on a part-time basis. What the difference was between the two types of site fees does not appear in the Tribunal's reasons.
4. The evidence against Mr Park was described by the Tribunal as follows: "14 The applicant acknowledged that he had signed Occupation Agreements, however, he believed that these were guidelines in relation to regulating the behaviour of the occupants. The applicant says that he was not aware that he should have requested a site agreement from the park owners. 15-16 … 17 Ms Mamouney says that the applicant has entered into a number of Occupation Agreements pursuant to the Holiday Parks (Long term Occupation) Act 2002 (HP Act). The written agreements were a fixed term of 12 months, at the end of which the applicant was authorised to stay under the same terms unless or until the agreement ended in accordance with the agreement. 18 The respondent says that in accordance with clause 5 of the agreement, the applicant has declared that the site is not the applicant's principal place of residence. 19 The respondent's documents include a letter dated 25 August 2015 inviting the applicant to attend a meeting with the managers in relation to discussing his occupancy with the park managers believing that he was in breach of the agreement. The respondent says that this is inconsistent with the applicant's evidence that there was an agreement for him to occupy the unit on a permanent basis. 20 The respondent denies that the applicant has been served with any termination notice. The respondent says that the applicant was contacted to advise that he was approaching his limit of 180 nights and sought clarification as to what plans he had made. The respondent has included emails sent to the applicant on 9 May 2021 in this regard. The applicant replied on 16 May 2021 advising that he was looking into alternative accommodation with local real estate agents."
5. Mr Park acknowledged signing the documents described as Occupation Agreements. We have been provided with Schedule 1 to three of those Occupation Agreements, although not the balance of their terms. Having said that, Schedule 1 of the HPA contains mandatory terms for such Agreements.
6. Each Schedule provided to us is headed: "OCCUPANCY AGREEMENT HOLIDAY PARKS (LONG-TERM CASUAL OCCUPATION) ACT 2002 NO 88"
7. The first Agreement (as revealed by its Schedule 1) was dated 5 October 2013 (only some 11 months after the alleged oral site agreement). In that Occupation Agreement Mr Park said his residential and postal address was in the town of Melton, Victoria. The Agreement said it commenced on 1 October 2013 and was for a term of twelve months.
8. The second Agreement was dated 3 October 2014, with the date of commencement being 1 October 2014 and was for a term of twelve months. Once again, Mr Park nominated an address in Melton, Victoria, as his residential and postal address.
9. The third Agreement was undated but contained a date of commencement of 1 October 2015 and was for a term of twelve months.
10. Clause 6.1 of each Schedule provided that when each Occupation Agreement came to an end a further Occupation Agreement had to be entered into.
11. The Occupation Agreements also contained an annexure which was not before us but which the Tribunal described as follows: "31 … Annex A of the occupation agreement includes a 'Nominated Occupants Form' wherein the applicant declared that he and the other approved occupants: 'Are not permanent residents and as such occupation is not permitted and site occupation is not subject to the NSW Residential Tenancy Legislation.'"
12. The HPA, in s 20, provides that where an occupation agreement creates an occupancy for a fixed term, and the occupation agreement has no provision in it for continuation after the fixed term ends, and neither the park operator or the occupant has terminated the occupation agreement when the fixed term ends, then an occupation agreement is to continue to apply on the same terms as those applying immediately before the day on which the fixed term ended, other than the term that set the fixed term for the agreement and the term fixing the amount of the occupation fee.
13. The section goes on to say that the occupation agreement is to continue on the basis that the occupant is holding over under a periodic occupancy, that is, on the basis that the occupation fee is paid and accepted at regular fixed intervals and the occupancy of the occupant continues indefinitely from one period to the next until terminated by notice equal to the length of the applicable period.
14. The third (and final written) Occupation Agreement referred to above was one that created an occupancy for a fixed term, had no provision in it for continuation after the fixed term ended, and neither the park operator nor Mr Park terminated it when the fixed term ended. Accordingly, subject to Mr Park's contention that he had a site agreement under the RLLCA and subject to the Agreement being subject to the HPA, his present occupation is under the periodic tenancy referred to in s 20 of the HPA.

The Tribunal's Reasons

1. The Tribunal held that Mr Park had failed to establish the existence of an oral site agreement (under the RLLCA) as he had alleged. The Tribunal reasoned as follows: "37 … Further, he had signed at least three occupation agreements under the HP Act. 38 It is well established that post-contractual conduct is admissible on the question of whether a contract was formed: Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153. The Tribunal finds that the applicant continuing to reside at the site for the last 8 years does not support that the parties entered into a new contract, rather, that there was an agreement that the park owners would not seek to enforce the occupation limit under the occupation agreement. It is uncertain as to whether this oral agreement was for a limited time given the circumstances of the applicant's martial separation. 39 Although the applicant disputed the receipt of the notice sent by the respondent in 2015 in relation to the applicant exceeding his occupation in breach of the occupation agreement, and that the notice applied to him, the Tribunal finds that such a notice would be consistent with the park owners regulating the site in accordance with the terms of the occupation agreement. 40 The applicant failed to explain why he entered into two subsequent occupation agreements and continued to pay the same rates if he thought that he had an oral site agreement. 41 The Tribunal finds that the applicant has failed to establish on the balance of probabilities that there was a binding oral site agreement pursuant to the RLCC Act. 42 The applicant's claim for a declaration pursuant to s 9(b) of the RLCC Act and an order pursuant to s 26(4) of the RLCC Act is dismissed."

The Appeal

1. The appellant appealed on the following three grounds: 1. The Tribunal erred in finding that the appellant did not have an oral site agreement. 2. Significant new evidence that would be an injustice not to be considered has been obtained. 3. Decision was against the weight of the evidence.

Ground 1

1. The appellant submitted that the Tribunal had (incorrectly) found that the appellant occupied the site under an occupation agreement pursuant to the HPA.
2. The appellant referred to s 5(1) of the HPA which says: 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.
3. The appellant submitted that each of sub-s (a)-(d) of s 5(1) must be satisfied in order for the HPA to apply, and, to put it shortly, the appellant submitted that the evidence established that none of those four sub-sections were satisfied. The appellant cited Bennett v Gennacker Pty Ltd [2016] NSWCA 89 in support of the proposition that if s 5(1) of the HPA were not satisfied, then that Act would not apply to an agreement entered into between an occupant and park operator.
4. The appellant then addressed each of the four parts of s 5(1) and directed our attention to evidence which he said established that none of those four conditions were satisfied.
5. The problem for this ground of appeal is its starting point. It contains two interrelated errors.
6. First, the Tribunal did not find that the appellant occupied the site under an occupation agreement pursuant to the HPA. Rather, at [41] of its reasons for decision (quoted above), the Tribunal rejected the appellant's case that he had entered into binding oral site agreement pursuant to the RLCC Act in November 2012.
7. The two propositions are not either/or. That is, it is not the case that any agreement between Mr Park and the park operator had to be either an occupation agreement under the HPA or a site agreement under the RLLC. That much is clear from the Court of Appeal's decision in Bennett.
8. In that case the parties entered into an agreement pursuant to which the appellants were entitled to occupy a holiday park site for a period of one month. The occupation fee was fixed at $167.45 per week. There was provision in the agreement for occupation to continue after the expiration of the fixed term. The Court said at [12] that: "There is little doubt that the contract between the parties constituted an 'occupation agreement', which is defined to mean 'any agreement under which a person grants to another person for value a right to occupy a site', whether the agreement is oral or in writing or partly oral and partly in writing."
9. Yet, by applying the terms of s 5 of the HPA (upon which Mr Park relies in this case), the Court ultimately held at [46] that the HPA did not apply to the parties' agreement. Thus, there was an agreement, but not one to which the HPA applied (nor, for that matter, the RPA).
10. Thus, the rejection of Mr Park's case in relation to a site agreement did not automatically mean that the Tribunal (at least inferentially) found that he had entered into occupation agreements under the HPA. It follows that Ground 1 must fail because it asserts errors in a finding that was never made.
11. The second error relates to the fact that Mr Park was propounding a case for a site agreement under the RLLCA when his alleged agreement arose before the RLLCA was enacted and at a time when different legislation, the RPA, was in force.
12. At the time of the alleged oral site agreement, the RPA provided for a number of different types of agreements. They were described in clause 5(1) of the now repealed Residential Parks Regulation 2006 (NSW). Clause 5 was in the following terms: (1) The standard form of residential tenancy agreement is: (a) in the case of a residential site agreement that creates a tenancy for a term of 3 years or less - the form set out in Schedule 1, or (b) in the case of a residential site agreement that creates a tenancy for a term exceeding 3 years - the form set out in Schedule 2, or (c) in the case of an agreement that creates a tenancy for a term of 3 years or less and is not a residential site agreement or an agreement with respect to land reserved under the National Parks and Wildlife Act 1974 - the form set out in Schedule 3, or (d) in the case of an agreement that creates a tenancy for a term exceeding 3 years and is not a residential site agreement or an agreement with respect to land reserved under the National Parks and Wildlife Act 1974 - the form set out in Schedule 4, or (e) in the case of an agreement that creates a tenancy with respect to land reserved under the National Parks and Wildlife Act 1974 - the form set out in Schedule 5.
13. Those agreements falling within cl 5(a) or (b) were to be used when the resident was to rent a site for the placement of a caravan that was owned by the resident and had a rigid annexe, or a site for the placement of a manufactured home that was owned by the resident. These were referred to in cl 5 as "residential site agreements".
14. The main difference between those two agreements was whether or not the term of the agreement was for less than three years [cl 5(a)] or more than three years [cl 5(b)]. In either case, the standard form terms contained in Schedules 1 and 2 of the Regulation provided that: "At the end of the term the resident can stay on the residential site at the same rent (or at an increased rent if the rent is increased in accordance with the Residential Parks Act 1998) and otherwise under the same terms unless or until the agreement is ended in accordance with the Residential Parks Act 1998."
15. Those agreements falling within cl 5(c) or (d) were to be used when the resident was to rent a site for the placement of a caravan that was owned by the resident and did not have a rigid annexe, or was to rent a site and a home from the park owner. These were referred to in cl 5 as "moveable dwelling agreements".
16. The agreements falling within cl 5(e) may be presently ignored.
17. Section 6A of the RPA provided that the RPA did not apply to an agreement or to a site to which the HPA applied.
18. There was no dispute that Mr Park's occupation of the site commenced on the basis that he used it for holidays and on a part-time basis. We infer this included the fact that he did not occupy the premises as his principal place of residence (see the definition of "residential site agreement" in s 3 of the RPA).
19. Quite what was the status of his occupation before November 2012 is unknown as it was not the subject of the parties' attention at the hearing before the Tribunal, and we do not know whether his occupation was pursuant to an occupation agreement under the HPA or some other agreement.
20. Be that as it may, presumably had Mr Park been aware that the RPA applied to his claim that an oral agreement arose in November 2012, he would have contended that the November 2012 conversation with the previous park operator gave rise to an enforceable residential site agreement under either cl 5(a) or (b) of the Residential Parks Regulation.
21. In any event, the Tribunal rejected Mr Park's case that an oral agreement was entered into (it matters not whether that agreement was under the RPA or the RLLCA). That was a finding of fact based upon the evidence given which we have summarised above.
22. In considering that question the Tribunal had regard to Mr Park's recollection of a conversation some nine years earlier (uncorroborated by any contemporaneous document), his unchallenged evidence of continuous occupation and his evidence of having nominated the park as his residence with various government authorities. The documents relating to the latter were dated 25 January 2015 (or 2016, the copy is not clear), 7 August 2017, 11 August 2021 and one document is undated.
23. Against that was the undisputed evidence that Mr Park signed three Occupation Agreements, each headed "Occupancy Agreement, Holiday Parks (Long-Term Casual Occupation) Act 2002 No 88", and each being limited to a term of twelve months commencing on 1 October 2013, 2014 and 2015.
24. As noted earlier, the first of those Agreements was signed only 11 months after the alleged oral agreement, and all three pre-date at least two, and possibly all, of the documents tendered by Mr Park in which he nominated his site at the caravan park as his residential address.
25. Mr Park's evidence that he thought the Occupation Agreements were something else is irrelevant. A party who signs a contract is bound by that contract whether that party reads the contract or not, unless their signature was obtained by fraud or misrepresentation - Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52.
26. Prima facie, each Occupation Agreement is a contract, whether or not it was subject to the HPA.
27. In Toll Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ said at [42]-[43] (footnotes omitted): [42] Consistent with this objective approach to the determination of the rights and liabilities of contracting parties is the significance which the law attaches to the signature (or execution) of a contractual document. In Parker v South Eastern Railway Company, Mellish LJ drew a significant distinction as follows: 'In an ordinary case, where an action is brought on a written agreement which is signed by the defendant, the agreement is proved by proving his signature, and, in the absence of fraud, it is wholly immaterial that he has not read the agreement and does not know its contents. The parties may, however, reduce their agreement into writing, so that the writing constitutes the sole evidence of the agreement, without signing it; but in that case there must be evidence independently of the agreement itself to prove that the defendant has assented to it.' [43] More recently, in words that are apposite to the present case, in Wilton v Farnworth Latham CJ said: 'In the absence of fraud or some other of the special circumstances of the character mentioned, a man cannot escape the consequences of signing a document by saying, and proving, that he did not understand it. Unless he was prepared to take the chance of being bound by the terms of the document, whatever they might be, it was for him to protect himself by abstaining from signing the document until he understood it and was satisfied with it. Any weakening of these principles would make chaos of every-day business transactions.'"
28. And at [46]: "The statements in the above authorities accord with the well-known principle stated by Scrutton LJ in L'Estrange v F Graucob Ltd (L'Estrange v Graucob) that '[w]hen a document containing contractual terms is signed, then, in the absence of fraud, or, I will add, misrepresentation, the party signing it is bound, and it is wholly immaterial whether he has read the document or not.'"
29. The point of that reference is to underline the fact that Mr Park had signed three documents which were directly inconsistent with his assertion of an earlier oral residential site agreement and signing those three agreements was conduct of his which was inconsistent with there having been the oral agreement alleged by Mr Park as having been entered into in November 2012.
30. In each of those documents Mr Park specified a different address (to his site address) as his residential and postal address, and in each he had declared that he was not a permanent resident and as such his occupation was not permitted and site occupation was not subject to the "NSW Residential Tenancy Legislation".
31. In addition, the Tribunal had before it Mr Park's email dated 16 May 2021 in which he advised the respondent that he was looking into alternative accommodation with local real estate agents after the respondent had told him that he was approaching his limit of 180 nights and sought clarification as to what plans he had made.
32. Although Mr Park had not appealed on the basis that the Tribunal's finding of fact (that no oral agreement had been entered into in November 2012) was affected by some appellable error, we wish to add that having examined the evidence and the Tribunal's reasons we cannot see any error in that finding.
33. As the Tribunal rejected Mr Park's claim of an oral binding agreement entered into in November 2012, it matters not whether that agreement (had it happened) would have been caught by the RPA at the time rather than the RLLCA as Mr Park thought. There was no agreement at that time, and so no agreement which would justify orders granting him a site agreement under the RLLCA now.
34. Accordingly, we do not accept Ground 1.

Ground 2

1. Ground 2 asserted that significant new evidence had been obtained and it would be an injustice for that new evidence not to be considered.
2. Mr Park sought to tender an email from Mr Paul Whiston, the previous park operator, dated 19 December 2021, in which Mr Whiston said that Mr Park had occupied site 477 at the caravan park for nine years, with his permission, "pursuant to being" one of eight of the long-term sites at the park.
3. An assertion that it would be an injustice for new evidence not to be considered is not a recognised ground of appeal, and no authority was cited in support of that assertion.
4. New evidence is allowable on an appeal from the Consumer and Commercial Division of NCAT if the new evidence was not reasonably available to a party at the time of the hearing before the Tribunal - cl 12(1)(c) of Schedule 4 of the Civil and Administrative Tribunal Act 2013 (NSW) (the "NCAT Act"). That evidence is allowable in support of an application for leave to appeal on the basis that a party may have suffered a substantial miscarriage of justice because the new evidence was not reasonably available to that party at the time of the hearing before the Tribunal.
5. We will assume that Ground 2 is directed to seeking leave to appeal on that basis.
6. The words "not reasonably available" is an objective test applied to the question whether the evidence in question was unavailable because no person could have reasonably obtained the evidence - Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23].
7. Something more than a party's incapacity to procure evidence is necessary to satisfy the requirements of cl 12(1)(c) - Al-Daouk at [24].
8. No evidence was provided which satisfied us that no person could reasonably have obtained that email from Mr Whiston at any time before the Tribunal hearing on 19 October 2021.
9. Accordingly, we did not admit that email into evidence.
10. Had we admitted that email we would not have granted leave to appeal in any event because the email is not significant in our view. That is because Mr Whiston does not say anything about the alleged conversation in November 2012. The only matter Mr Whiston refers to which might support Mr Park's case is the fact that he says Mr Park occupies one of eight long-term sites in the caravan park. But that is not a compelling fact given Mr Park, on his own case, commenced his part-time occupation at that same site on the basis it was a holiday site and not his principal place of residence. The inconsistency between the site being a long-term site and Mr Park occupying it (at the beginning of his occupancy) as a part-time holiday site is not explained and deprives the statement of any persuasive force.
11. We do not accept Ground 2.

Ground 3

1. Ground 3 asserts that the Tribunal's decision was against the weight of the evidence. This ground is a reference to cl 12(1)(b) of the NCAT Act which provides that a party may seek leave to appeal on the basis it may have suffered a substantial miscarriage of justice because the Tribunal's decision was against the weight of evidence.
2. The expression "against the weight of evidence" means that the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal that it can be said that the conclusion was not one that a reasonable Tribunal member could reach - Collins v Urban [2014] NSWCATAP 17 at [77].
3. We have set out the evidence both for and against Mr Park's case earlier in these reasons and made some observations about some of that evidence at [49]-[58] above.
4. The Tribunal found that the evidence favoured the conclusion that no oral agreement as alleged by Mr Park was entered into. On the evidence, we agree. In our view the evidence does not preponderate so strongly against the conclusion found by the Tribunal that it can be said that the conclusion was not one that a reasonable Tribunal member could reach. In our view the Tribunal's finding of fact was correct.
5. We do not accept Ground 3.

Orders

1. Whilst we can sympathise with Mr Park's position, at the end of the day the evidence against his case was much stronger than that for his case, and Tribunal decisions are required to be decided on evidence and the law rather than sympathies, however harsh the result of that may be for one party or the other.
2. We make the following order: 1. Appeal dismissed.

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: 14 March 2022