Reckless v Silva Portfolios Pty Ltd t/as Ballina Waterfront Village & Tourist Park

NCAT Appeal Panel|2017-11-20

Heydons Lawyers & Attorneys (Respondent) File Number(s): AP 17/36502 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Reckless v Silva Portfolios Pty Ltd t/as Ballina Waterfront Village & Tourist Park [2017] NSWCATCD 57 Date of Decision: 3 August 2017 Before: W Priestley, General Member File Number(s): RC 17/11073

Introduction

This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) against a decision made in the Consumer and Commercial Division (CCD) of the Tribunal on 3 August 2017.
Mrs Reckless, the appellant, is a resident in a residential park owned by the respondent (the Park Operator). In her application to the CCD Mrs Reckless had asked the Tribunal to confirm that she was not liable to pay certain sewerage and electricity charges to the Park Operator, and that she was entitled to a refund of amounts she had already paid. Her application was unsuccessful, the Tribunal deciding that the charges were validly imposed on her by the Park Operator and that no refund was payable.
We have decided to allow the appeal in part and to remit the proceedings to the Consumer and Commercial Division to decide what amount of electricity charges, if any, the Park Operator should refund to Mrs Reckless. We will explain why.

Background and the issues before the Tribunal below

In April 2014 Mrs Reckless and the Park Operator entered into an agreement (the Site Agreement) under which Mrs Reckless was entitled to occupy an identified site in the Park Operator's residential park. Residential parks were regulated at the time by the Residential Parks Act 1998 (the old Act).
The Site Agreement specifies who is to pay for a range of rates, taxes and other charges. Among the charges Mrs Reckless agrees to pay are: 1. 'any excess garbage or sanitary charges' in connection with the residential site (under clause 5.4); and 2. 'all electricity charges' in connection with the residential site (under clause 6), but only if, among other things, the residential site was separately metered.
Up until late 2015 the Park Operator did not ask Mrs Reckless to pay any charge under clause 5.4.
Then things changed. The Park Operator notified Mrs Reckless that it was introducing a sewerage charge, with effect from 1 November 2015. The Park Operator claimed to be entitled to impose the charge as a consequence of the introduction of new legislation regulating residential parks - the Residential (Land Lease) Communities Act 2013 (the new Act). The commencement date of the new Act was 1 November 2015, the same date as the introduction of the proposed new sewerage charge.
Mrs Reckless disputed the introduction of the sewerage charge and brought the question of its validity to the Tribunal for determination. At a directions hearing prior to the final hearing, Mrs Reckless was allowed to amend her application to specifically include a claim for reimbursement of electricity charges. She asked the Tribunal to declare that the electricity charges the Park Operator was imposing on her were higher than the amounts charged to the Park Operator by the electricity provider, in contravention of s 77 of the new Act. Other issues raised by Mrs Reckless in her application were resolved prior to the hearing.
The Tribunal found against Mrs Reckless on the sewerage charges and the electricity charges issues.
It held that the sewerage charge was a 'sanitary charge' that the Park Operator was entitled to impose on Mrs Reckless. It was not a 'new fee or charge permitted by' the new Act (which would have prevented the Park Operator from recovering it) because it was always capable of being charged to Mrs Reckless under the Site Agreement.
The Tribunal also held that the electricity charges were valid under the old Act and continued to be valid under clause 6 of the Site Agreement and the transitional provisions of the new Act. They did not fall foul of s 77 of the new Act because they continued to comply with clause 6 of the Site Agreement, and the old Act and regulations.

The appeal

The grounds of appeal specified in the Notice of Appeal are: 1. The Tribunal erred in finding that a sewerage charge was valid and payable under the old Act; 2. The Tribunal erred in not applying the provisions of Schedule 2, clause 15(2) of the new Act (relating to 'new fees or charges'); 3. In the alternative, if the sewerage charge is a 'sanitary charge', then the Tribunal erred in finding that Mrs Reckless was required to pay 'all' sanitary charges rather than only 'excess' sanitary charges; 4. The Tribunal erred in not applying s 6(2) of the new Act so as to prevent the Park Operator from charging more for electricity than it was being charged; 5. The Tribunal erred in not applying s 77(3) of the new Act by permitting the Park Operator to charge for electricity in the way that it does, despite its finding that 'on the evidence it seems more likely than not, that the park operator is charging more for the electricity it is on-selling, than it is being charged'.
The appeal was heard at the same time as appeal proceedings AP 17/23503. This was an appeal brought by Wilma Craig against the Park Operator, which concerned sewerage charges but not electricity charges. We have separately published reasons for decision in relation to that appeal.

Ground 1

The Tribunal below accepted, at [29], the Park Operator's submission that the meaning of 'sanitary' is wide enough to encompass 'sewerage', adding: There was no challenge to such an interpretation by the applicant.
At the appeal hearing Mr Beilby, who represented Mrs Reckless, accepted that to press Ground 1 on the basis that the sewerage charge was not a sanitary charge would be to pursue a matter not raised in the Tribunal below. It is not common for the Appeal Panel to allow an appellant to take that course; the general expectation is that an appeal is just that - an appeal from the Tribunal's original decision. Allowing an issue to be agitated before the Appeal Panel where that issue was not raised before the Tribunal at first instance is an unsatisfactory way of dealing with things. In addition, it is often unfair to the other party.
Nevertheless, in this particular case, the Park Operator's representatives did not oppose our allowing Mrs Reckless to press Ground 1. They acknowledged that the proper meaning of clause 5.4 is an important issue not only for Mrs Reckless, but also for the many other residents of its residential park, and other residential parks like it where an identical clause is contained in a resident's site agreement. In the circumstances it is appropriate that we address the appeal ground. We can deal with it briefly.
We perceive no error in the Tribunal's conclusion that a sewerage charge answers the description 'sanitary charge'. 'Sanitary' is an adjective describing matters related to health, cleanliness and precautions against disease. A charge for the removal of sewage and other waste is aptly described as a 'sanitary charge'.
Furthermore, it is consistent with the structure of clause 5 of the Site Agreement (in which the types of charges set out in the various subclauses are methodically and deliberately separated from each other) for a sewerage charge to be grouped with a garbage charge. Both concern the removal of waste from the site. Not only textually, but also contextually, a sewerage charge is a 'sanitary' charge for the purposes of the Site Agreement.
But there is still the question whether it was capable of being charged under the old Act. If not, then it could not be validly imposed when the new Act came into operation.
The Tribunal found the sewerage charge was capable of being charged under the old Act, and we agree.
Clause 5 in Schedule 2 to the new Act provides that agreements entered into under the old Act (like the Site Agreement in this case) remain valid after the commencement of the new Act if they have not been terminated. It is accepted here that the Site Agreement has not been terminated. It follows that any term of the Site Agreement remains in force (provided, of course, that it does not offend any provision of the old legislation - which would have made it invalid from the very beginning).
Clause 5.4 of the Site Agreement requires Mrs Reckless to pay sanitary charges, and that includes sewerage charges. Such a provision in a pre-existing agreement certainly did not offend the old legislation. Indeed, clause 5.4 of the Site Agreement is in virtually the same terms as clause 16(3) of the Residential Parks Regulation 2006, made under the old Act, which required a resident to pay 'any excess garbage or sanitary charges'.
Ground 1 is not made out.

Ground 2

Clause 15 in Schedule 2 to the new Act provides as follows: 15 Fees and charges (1) Any fees and charges which were validly paid or received under the repealed Act are not affected by this Act. (2) Any new fee or charge permitted by this Act does not apply to any agreement entered into before the commencement of the relevant provisions of this Act. (3) Fees for late payment of utility charges are not payable for utilities unpaid at the commencement of the relevant provisions of this Act.
Mrs Reckless submits that the sewerage charge imposed on her from 1 November 2015 is a 'new fee or charge', and in light of clause 15(2) above she cannot be required to pay it.
However, as we have already explained, and as the Tribunal below found, Mrs Reckless was liable to pay sewerage charges from the time she entered into the Site Agreement in April 2014. The fact that the Park Operator did not force her to pay a charge that she was liable to pay under the Site Agreement does not make the charge a 'new' charge when the Park Operator eventually decides to enforce its rights.
Clause 15(2) in Schedule 2 to the new Act does not assist Mrs Reckless. Ground 2 is not made out.

Ground 3

Ground 3 asks us to determine the meaning of clause 5.4 of the Site Agreement.
The competing positions taken by the parties can be summarised as follows:

The Park Operator submits that the ordinary and natural meaning of the words in the clause is that the word 'excess' forms a compound expression applying only to 'garbage' and not to 'sanitary' as well.
Mrs Reckless submits that the clause requires her to pay only 'excess' garbage charges and 'excess' sanitary charges. In practical terms, her submission is that the words 'any excess' modify both the following expressions - 'garbage (charges)' and 'sanitary charges'.

The question for us is, which of those competing positions provides the more natural meaning of the clause? We think the latter. It is more natural to read the clause as if the true composite expression is 'garbage and sanitary charges', and with 'any excess' modifying both of them. That is not only a possible reading of the clause; it is the more likely one.
The Park Operator's preferred reading, although possible, is somewhat tortured and artificial. The fact that tells most heavily against it is that the word 'charges' does not appear immediately after the word 'garbage'. That leaves the expression 'garbage charges' incomplete; the expression only becomes whole when the words 'sanitary charges' are added. It cannot then be the case that those very same words - 'sanitary charges' - are to be carved off, so that the expression 'any excess' does not modify them. That would be to do too much violence to the language.
So, in summary, Mrs Reckless must pay any garbage or sanitary charges, but only if they answer the description of an 'excess' charge. She is not liable under clause 5.4 to pay a standard (that is, non-'excess') garbage charge, and she is not liable under clause 5.4 to pay a standard (that is, non-'excess') sanitary charge. Charges falling within either of those categories cannot be recovered from Mrs Reckless under clause 5.4.
The Park Operator complains that this interpretation of clause 5.4 'would always be inoperative' in the context of the Site Agreement in this case, since the local water authority, Ballina Shire Council, does not in fact charge 'excess' sewerage charges. But that argument ignores the fact that the Site Agreement does not refer, in terms, to sewerage charges, but to sanitary charges. There is no evidence one way or the other as to whether there may be any excess sanitary charges, other than sewerage charges, that may be capable of being imposed under clause 5.4. However, even if there are none, that provides no reason to settle upon the strained interpretation of clause 5.4 that the Park Operator urges upon us.
We allow the appeal on ground 3.

Grounds 4 and 5

It is convenient to deal with grounds 4 and 5 together, since they are intertwined. They raise two questions - first, whether s 77 of the new Act applies in this case; and second, if s 77 does apply, what does it mean?
The starting point is s 6 of the new Act, which provides as follows: 6 Application of Act to site agreements (1) This Act applies to all site agreements, whether existing immediately before or coming into existence after the commencement of this section, unless a provision of or under this Act provides otherwise. (2) Where this Act applies to a site agreement, it so applies despite the terms of the agreement or any other contract, agreement or arrangement, whether made before or after the commencement of this section. (3) This Act applies to a site agreement until it is terminated in accordance with this Act.
It is clear that by s 6(1), the new Act will apply to the Site Agreement 'unless a provision of or under [the new Act] provides otherwise'. Mrs Reckless does not suggest there is a provision of the new Act that provides otherwise, and so it follows, in her submission, that the Park Operator must comply with s 77. The Park Operator says that even if that is the case, the price it charges Mrs Reckless for electricity does not exceed the limit set by s 77.
By s 6(2), the new Act applies to the Site Agreement entered into between Mrs Reckless and the Park Operator 'despite the terms of the agreement or any other contract, agreement or arrangement, whether made before or after the commencement of this section'. It must follow that s 77 of the new Act applies to the Site Agreement. In that respect we conclude that the Tribunal below erred in deciding, at [36], that the electricity charges passed on to Mrs Reckless since 1 November 2015 do not fall foul of s 77 'because they are still in accordance with clause 6 of the agreement, and the old Act [and] regulations…'. With respect, the question whether the charges are still in accordance with the prior provisions is beside the point. This is because the new Act (including s 77) applies to all site agreements (s 6(1)), despite the terms of the agreement (s 6(2)). The real question is whether the electricity charges fall foul of s 77 even if they are still in accordance with clause 6 of the Site Agreement and the prior law. To answer that question we must examine what s 77 means.
The section reads as follows: 77 Utility charges payable to operator by home owner (1) This section applies if, under a site agreement, the home owner is required to pay utility charges to the operator for the use by the home owner of a utility at the residential site. (2) The home owner cannot be required to pay for the use unless: (a) the use is separately measured or metered, and (b) the operator gives the home owner an itemised account and allows at least 21 days for the payment to be made. (3) The operator must not charge the home owner an amount for the use of a utility that is more than the amount charged by the utility service provider or regulated offer retailer who is providing the service for the quantity of the service supplied to, or used at, the residential site. Maximum penalty: 20 penalty units. (4) The regulations may: (a) provide for a maximum utility charge payable by home owners to the operator, and (b) create an offence for an operator to request or receive more than that maximum charge (if any). (5) The regulations may provide that a service availability charge for electricity payable by home owners to the operator of a community is to be discounted in accordance with the regulations where less than 60 amps are being supplied.
Mrs Reckless, whose residential site has its own electricity meter, submits that s 77(3) prohibits the Park Operator from charging her more for her electricity use than the Park Operator is charged for the amount she consumes. She points out that the meter on her residential site is not a 'smart' meter that can identify the time of the day when she is consuming electricity. The Park Operator, on the other hand, does have a 'smart' meter, which allows it to take advantage of differential pricing of the electricity that comes into the residential park. It is charged different rates at different times of the day - there are 'peak' periods, 'shoulder' periods and 'off-peak' periods, which are charged differently. Mrs Reckless complains that she is being charged a much higher rate than the Park Operator is paying - in December 2016, for example, she was charged 24.20 cents per kilowatt hour (c/kWh), plus GST, while during the same month the Park Operator was charged at rates ranging from 4.2107 to 6.2377 c/kWh, plus GST. Mrs Reckless submits that the Park Operator's method of charging her for electricity consumption is in breach of s 77(3).
The Park Operator says Mrs Reckless has misunderstood s 77(3). It says the amount it is charged by the local electricity supplier is irrelevant to the enquiry posed by s 77(3). In summary, its argument is as follows: 1. When the Site Agreement was entered into there was, but as a result of the deregulation of the electricity market there is no longer, a 'regulated offer retailer'; 2. The 'regulated offer retailer' was obliged to publish a 'standing offer price'; 3. Residents in residential parks could be charged, in the past, up to the standing offer price; 4. That standing offer price is the price Mrs Reckless was charged, validly, under the Site Agreement; 5. Local area retailers of electricity still publish a standing offer price for small retail customers (we were told that the local area retailer in the Ballina area is Origin Energy); 6. The effect of s 77(3) is that a park operator cannot charge a resident more than the local area retailer's standing offer price; 7. That is the price the Park Operator is charging Mrs Reckless; 8. The Park Operator's position is consistent with Fact Sheets published by NSW Fair Trading in April 2017, dealing with the rules for setting utility charges in land lease communities.

Consideration

Although s 77(3) is not drafted particularly well, it is clear that it is trying to prohibit overcharging of residents, but specifically what is prohibited is somewhat difficult to fathom. The problem can be simplified by substituting labels for two of its critical components: The operator must not charge the home owner an amount for the use of a utility that is more than the amount charged by Entity A for B, where 'Entity A' is 'the utility service provider or regulated offer retailer who is providing the service' and 'B' is 'the quantity of the service supplied to, or used at, the residential site'.
The questions then are: 1. Who is Entity A? 2. What is the amount charged by Entity A for B?
As for question (a), Entity A must be whoever is providing the service. There are only two possible candidates - the utility service provider, or the regulated offer retailer.
It seems clear beyond argument that the first possible candidate (the utility service provider) is the supplier of electricity in the local area. This is Origin Energy - the supplier of electricity to the Park Operator, as shown in the invoices at pages 76-97 of the Appellant's bundle of materials.
The second possible candidate is the regulated offer retailer. This is where it starts to get complicated.
The Park Operator says that to understand s 77, and the significance of the reference to the 'regulated offer retailer', it is necessary to trace the recent history of the electricity market in New South Wales.
When the new Act was passed by Parliament and subsequently assented to by the Governor (in 2013), pricing in the electricity market was still heavily regulated. The relevant legislation is the National Energy Retail Law (NSW) (NERL) (which is based on the National Energy Retail Law set out in the Schedule to the National Energy Retail Law (South Australia) Act 2011 (SA), and which applies as a law of New South Wales by the National Energy Retail Law (Adoption) Act 2012 (NSW) (the NERL Adoption Act - see in particular s 4 of that Act). In 2013, and for some time afterwards, the NERL imposed certain pricing obligations on a regulated offer retailer. In particular, and by way of example, s 37C of the NERL, as it existed during the period 3 January 2014 to 30 June 2014, provided as follows (the label 'AER' stands for the Australian Energy Regulator): 37C Obligations of retailers relating to regulated offers (1) A regulated offer retailer for a regulated offer customer must make an offer (a regulated offer) to the customer to provide customer retail services - (a) at the regulated offer prices; and (b) under the retailer's form of standard retail contract. (2) The regulated offer prices are the prices imposed by a regulated offer retailer in accordance with - (a) any relevant determination of the Independent Pricing and Regulatory Tribunal under Division 5 of Part 4 of the Electricity Supply Act 1995; or (b) any gas pricing order under Division 3 of Part 2 of the Gas Supply Act 1996 or any voluntary transitional pricing arrangement for gas agreed between the Independent Pricing and Regulatory Tribunal and the regulated offer retailer. (3) A designated retailer (other than the regulated offer retailer) for a small customer must, if the customer requests the supply of energy under the retailer's standing offer, inform the customer of the customer's right to receive a regulated offer under this section and provide information about where to obtain particulars of the regulated offer retailer. (4) A regulated offer retailer must - (a) present its regulated offer prices (including any variation of those prices) in accordance with the AER Retail Pricing Information Guidelines; and (b) without limitation, present those prices in accordance with those guidelines when publishing, advertising or notifying the AER of those prices or any variation. (5) A regulated offer retailer must publish the terms and conditions of the retailer's regulated offer prices on the retailer's website. (6) A regulated offer retailer must comply with the terms and conditions of the retailer's regulated offer. (7) A regulated offer retailer is not obliged to make a regulated offer to a regulated offer customer if the customer's premises are not, or are not proposed to be, connected to a distributor's distribution system. (8) The NSW regulations may apply (with or without modifications) to the provision of customer retail services by regulated offer retailers provisions of the Rules relating to the provision of customer retail services by designated retailers and to standard retail contracts of designated retailers. (9) If a designated retailer for a customer is also the regulated offer retailer for the customer, the retailer must make an offer under this section and also an offer under section 22 (in the capacity of the designated retailer) if the retailer's standing offer prices differ from its regulated offer prices. However, the retailer is not required to make an offer under section 22 if the prices are the same. (10) Sections 26, 27 and 30 apply to a standard retail contract between a regulated offer retailer and a regulated offer customer based on a regulated offer (a regulated offer contract) in the same way as they apply to a standard retail contract between a designated retailer and a small customer based on a standing offer. (11) A regulated offer retailer may alter the standard retail contract specified under this Law to make any modifications necessary to reflect the regulated offer and regulated offer prices. Any such alteration is taken to be a required alteration.
Section 2 (the Interpretation section) of the NERL directed the reader to s 37A for the meaning of the expression 'regulated offer retailer'. Section 37A provided that the 'NSW regulations' (defined by s 2 of the NERL as regulations made under the NERL Adoption Act) must nominate one or more retailers as the regulated offer retailer for customers within the whole or a part of New South Wales. That retailer, or those retailers, would each be a regulated offer retailer.
Until 30 June 2014, clause 6(2) of the NSW regulations nominated the following retailers as the regulated offer retailers for electricity: 1. Origin Energy Electricity Ltd for premises connected to the distribution system of either Essential Energy or Endeavour Energy; and 2. EnergyAustralia Pty Ltd for premises connected to the distribution system of Ausgrid.
Clause 6(1) contained corresponding nominations of regulated offer retailers for gas.
Clause 6(2) was repealed with effect from 1 July 2014. (Clause 6(1) remained in force until 30 June 2017, when it, too, was repealed.)
Meanwhile, the new Act dealing with residential parks (the Residential (Land Lease) Communities Act 2013), although having been assented to in 2013, was not proclaimed to commence until 1 November 2015. And between the date of assent and the date of commencement, the concept of 'regulated offer retailer' in relation to electricity was abolished (as it has since been abolished in relation to gas as well). Nevertheless, the expression is still there in the new Act.
In light of that history, we accept that there is no longer an entity answering the description 'regulated offer retailer' in s 77(3). But that simply means there is no second candidate to fill the shoes of Entity A (see [42]-[46] above). (And even if there were, the second candidate would have been the same as the first candidate anyway - Origin Energy.)
However, the Park Operator sees things differently. It submits as follows (written submissions at [82]): The definitions of utility service provider and regulated offer retailer refer to the notional retailer who would be providing the service to the home owner if the home owner was connected to the main electricity grid. The limit in s 77 is the amount that the local area retailer would charge.
In other words, the Park Operator asks us to depart from a consideration of the actual words of the statute - by which 'the utility service provider … who is providing the service' can readily be identified - and instead search for 'the notional retailer who would be providing the service …'. The Park Operator also asks us to identify not what is charged (which must be the sense in which the words 'the amount charged' are used in s 77(3)) for B by the actual provider, but what would be charged for B by a notional provider.
The approach suggested by the Park Operator is at odds with all currently accepted rules of statutory interpretation. We need only refer to what the High Court said in Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55, at [39]: This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text" [Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at 46 [47]]. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.
Despite the inelegant drafting of s 77(3), there is no ambiguity or lack of clarity in the language used. The 'utility service provider' still exists. It can readily be identified. There is no warrant for ignoring that entity and searching instead for a notional alternative entity that might have done what the actual entity in fact does, and then working out what that notional entity might have charged for that hypothetical service. The position is simply this - the Park Operator cannot charge Mrs Reckless for her consumption of electricity more than it is being charged by Origin Energy for the amount Mrs Reckless has consumed.
We are not dissuaded from that view by the Fact Sheets published by NSW Fair Trading (pages 68-71 of the Park Operator's submissions bundle). One of those Fact Sheets, headed 'Utilities and other charges', states: You cannot charge a home owner usage charges for utilities more than they would otherwise be charged if they were a direct residential customer of a local utility service provider. Check your local provider's website to see what the standard rate for usage is. With service availability charges, you cannot charge an individual home owner any more than the actual amount you have been billed divided by the number of residential places, including holiday sites, in the community. For electricity, the maximum service availability charge a home owner can be asked to pay is the service availability charge that the home owner would have to pay if they were a small customer on a standard retail contract of the applicable local area retailer. If electricity supplied [to] the home owner's site is less than 60 amps then a discount applies. Go to What if the electricity supply is not up to standard? for more information. The maximum service availability charge a home owner can be asked to pay for both water and sewerage service availability is $50 each calendar year.
The second Fact Sheet is headed 'Land lease community utilities'. It is in almost identical terms to the first one.
The commentary in the Fact Sheets concerning service availability charges, the discount for supply of less than 60 amps of electricity, and the maximum service availability charge for both water and sewerage of $50 per calendar year, closely reflects the relevant provisions in the Residential (Land Lease) Communities Regulation 2015 (the current Regulation). For example, following its amendment in 2016, clause 13 of the current Regulation provides: 13 Maximum service availability charge - electricity (1) 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. (2) Despite subclause (1), the service availability charge payable by a home owner to an operator of a community for supply at a residential site of less than 60 amps of electricity is to be discounted in accordance with subclause (3). (3) The maximum service availability charge payable by a home owner to an operator for supply at a residential site of less than 60 amps of electricity is: (a) if less than 20 amps of electricity is supplied to the residential site - 20 per cent of the service availability charge that would apply if the home owner were a small customer under a standard retail contract of the applicable local area retailer, or (b) if 20 amps or more but less than 30 amps of electricity is supplied to the residential site - 50 per cent of that service availability charge, or (c) if 30 amps or more but less than 60 amps of electricity is supplied to the residential site - 70 per cent of that service availability charge. (4) In this clause, local area retailer, small customer, standard retail contract and standing offer prices have the same meanings as in the National Energy Retail Law (NSW).
Similarly, clause 12 of the current Regulation explicitly caps the water and sewerage availability charge at $50 per calendar year - and that is precisely what the Fact Sheets explain the situation to be.
However, in relation to electricity usage charges, the commentary in the Fact Sheets diverges from the terms of s 77(3).
The Park Operator took us to the Retail Exempt Selling Guideline v4, published by the Australian Energy Regulator in March 2016. This document sets out the various supply conditions imposed on 'exempt persons', such as the Park Operator in the context of its re-supply of electricity in its residential park, in accordance with the NERL Adoption Act. Condition 7 in Appendix A-2 deals with 'pricing', and is in the following terms (footnotes omitted): Condition 7 - Pricing 1. An exempt person must not charge the exempt customer tariffs higher than the standing offer price that would be charged by the relevant local area retailer for new connections, if the local area retailer were to supply that quantity, or estimated quantity, of energy directly to the premises of the exempt customer. 2. An exempt person must provide notice to the exempt customer of any change in the exempt customer tariff as soon as practicable and no later than the exempt customer's next bill. 3. An exempt person must not impose any charge on an exempt customer that could not be charged by the relevant local area retailer for new connections under a standard retail contract. 4. An exempt person must limit any fee charged to a customer for late payment to a recovery of reasonably incurred costs by the exempt person as a result of the customer's late payment.
It is apparent that the commentary in the Fact Sheets, to the extent that it deals with electricity consumption charges, is consistent with Condition 7 in the Australian Energy Regulator's Retail Exempt Selling Guideline v4. However, compliance by an exempt person with Condition 7 does not necessarily equal compliance with the requirements of s 77(3).
It is clear from the difference in language between s 77(3) of the new Act and clause 13 of the current Regulation that the restrictions imposed on a park operator in relation to usage charges are different from the restrictions imposed in relation to service availability charges. And yet, despite the different language, the Park Operator urges us to interpret s 77(3) as if it used the language of clause 13. We decline to do so. Our task is to interpret the language used, not different language that might have been used but was not.
Finally, it may be thought surprising that a park operator's pricing practices can comply with Condition 7 of the Australian Energy Regulator's Retail Exempt Selling Guideline and yet be in breach of s 77(3) of the new Act. But that outcome is not as unusual as it may appear. Park operators are not the only category of 'exempt person' subject to the Guideline: an 'exempt person' is any person 'who is exempted by the AER under a deemed, registered or individual exemption from the requirement to hold a retailer authorisation': Section 11 of the Guideline. Section 2 of the Guideline provides some examples of other categories of persons who may be on-selling electricity, but who are entitled to exemption from the obligations imposed on 'authorised retailers' - they may include landlords selling electricity to tenants of a residential apartment block, or persons selling electricity to builders working on a construction site. It is not hard to imagine why, as a matter of policy, more stringent pricing conditions might be imposed on some categories of 'exempt person' than on others. Section 77(3) of the new Act is simply one example of the implementation of those types of policy considerations.
In the event that its submission in relation to s 77(3) is not accepted, the Park Operator submits, in the alternative, that clauses 3 and 5 of Schedule 2 to the new Act allow the Park Operator to continue to charge for electricity consumption in the way that it did before the new Act came into force.
Those clauses are in the following terms: 3 General savings Subject to this Act, each person, thing and circumstance appointed or created under the repealed Act or existing or continuing under that Act immediately before the commencement of the relevant provisions of this Act continues to have the same status, operation and effect as it would have had if this Act had not been enacted. 5 Existing agreements (1) Agreements entered into under the repealed Act that have not been terminated remain valid after the commencement of the relevant provisions of this Act. Note. Accordingly, an existing agreement continues without the need to sign a new agreement once this Act commences. (2) Without limiting subclause (1), a term of an agreement entered into under the repealed Act that provides for the increase of site fees by a fixed method (however expressed) remains in force after the commencement of the relevant provisions of this Act. (3) A residential site agreement, moveable dwelling agreement or NPWS agreement (other than an excluded agreement) in force immediately before the repeal of the repealed Act is taken, on that repeal, to be a site agreement between the resident (as or on behalf of the home owner) and the park owner (as operator of the community in which the home is located). (4) An excluded agreement in force immediately before the repeal of the repealed Act is taken, on that repeal, to be a tenancy agreement. (5) This clause does not validate a term of an agreement entered into under the repealed Act that was void under that Act. (6) In this clause: excluded agreement means a moveable dwelling agreement or NPWS agreement under which a resident occupies a home that is owned by the park owner. moveable dwelling agreement means an agreement of a kind referred to in clause 5 (1) (c) or (d) of the Residential Parks Regulation 2006 as in force immediately before its repeal by this Act. NPWS agreement means an agreement of a kind referred to in clause 5 (1) (e) of the Residential Parks Regulation 2006 as in force immediately before its repeal by this Act.
The Park Operator submits that its method of charging for electricity consumption is a 'circumstance' created by the standard terms of the old Act and therefore, in accordance with clause 3, it 'continues to have the same status, operation and effect as it would have had if this Act had not been enacted'. The Park Operator also notes that although the Site Agreement entered into in April 2014 is not in the same terms as the prescribed site agreement contained in either of the now repealed Regulations, clause 6 of the Site Agreement is for all practical purposes identical to the standard clause dealing with electricity charges in each of those prescribed site agreements.
The Park Operator submits that its continued practice of charging Mrs Reckless for her electricity consumption in accordance with clause 6 of the Site Agreement is protected by clauses 3 and 5 of Schedule 2 to the new Act.
We do not accept the Park Operator's submissions. If the existence of any term of a site agreement entered into before the commencement of the new Act were accepted as a 'circumstance' created under the old Act, or as a 'circumstance' that was existing or continuing under the old Act immediately before the commencement of the new Act, then there is little room for the operation of the new Act in relation to pre-existing site agreements at all, despite the apparent intention to bring all site agreements, whether old or new, into one modernised regulatory environment. We do not ignore the qualification in s 6(1) of the new Act - that the Act applies to pre-existing site agreements 'unless a provision of or under this Act provides otherwise' - but if all pre-existing terms of an agreement are saved by clauses 3 and 5 of Schedule 2, it is hard to see why the agreement would be brought into the new Act in the first place.
We allow the appeal on grounds 4 and 5.

Orders

As noted above, Mrs Reckless seeks a refund of electricity charges that have not been calculated in accordance with s 77(3). It appears that the Park Operator has charged Mrs Reckless more than it has been charged for the electricity Mrs Reckless has used. However, on the material before us, we are unable to calculate the amount of any overpayment and have therefore remitted the matter to the Consumer and Commercial Division. We do not doubt that, given the manner in which the Park Operator is charged for electricity, it will not be a simple exercise to calculate how much it has been charged for the electricity Mrs Reckless has used. We conclude that both parties should have the opportunity to put on new evidence in relation to that issue.
The Tribunal's reasons for decision indicate that Mrs Reckless was given leave to amend her application to seek a refund of overpaid electricity charges. It does not appear that Mrs Reckless sought or was granted leave to seek a refund of any overpaid sanitary charges. To the extent that Mrs Reckless has paid sewerage charges that are not excess sewerage charges, she may be entitled to seek a refund of such charges. The parties are urged to settle this issue in order to avoid further litigation.
We make the following orders: 1. The appeal is allowed in part. 2. The proceedings are remitted to the Consumer and Commercial Division of the Tribunal to determine the amount of electricity charges, if any, to be refunded to Mrs Reckless. 3. The parties may provide new evidence in the remitted proceedings.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar

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: 03 April 2018

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