Taylor v Moloney

Is the appeal out of time?

1. The decision under appeal was published on 5 January 2016. In her notice of appeal the appellant states that she received the notice of decision on 14 January 2016. The appeal was filed on 12 February 2016. However, the respondent asserts that the appellant in fact received notice of the decision by post to an address of an organisation which had represented her in the proceedings one or two days after the date of posting, namely 5 January 2016.
2. There can be no question of any prejudice attaching to the respondent if the appellant is granted leave to file the Notice of Appeal out of time. At the most the appellant would require 7 days' grace. We are unsure as to whether and to what extent the organisation concerned continued to represent the appellant, and in any event the ultimate outcome of these appeal proceedings, as we shall shortly discuss them, is such that it would wreak a substantial injustice if the appellant was to be denied the right to appeal.
3. We propose to extend the time for the making of this appeal.

The first decision

1. It is necessary that we make some reference to the initial decision of this Tribunal which dealt with the controversy between the parties. This decision was published on 11 March 2015 by the same Member who determined the decision under appeal. It appears from the decision that the respondent had served a notice of termination of the occupation agreement pursuant to which the appellant occupied the site relying on a right to terminate that agreement under the provisions of the Act. The appellant sought to have the termination notice set aside on the basis that she was not a casual occupant of the site but in fact lived there permanently, with the effect that the Act would not apply. In rejecting the application the Member found that the appellant was not a "witness of credit," meaning that she was not a witness who, in her evidence, was truthful in everything that she said.
2. There is only scant reference to the subject of the occupation agreement in the decision. It is referred to as a "van and cabin" on the site. The Member said "there was no dispute that the original occupation was pursuant to (the Act)". She then held that the agreement was one to which the provisions of the Act applied, declared it to have been terminated (effective immediately) and the possession of the site was to be given to the respondent on 1 May 2015. She also held that the appellant was liable to pay certain occupation fees until the date possession was given to the respondent.

The decision under appeal

1. This decision is dated 5 January 2016. It arose out of an application brought by the respondent seeking certain orders which, as narrated by the Member in her decision were to the following effect: '(1) An order under section 32 of the Act that the site was abandoned by the respondent (2) An order under section 34 (2) (a) of the Act authorising the removal, destruction or disposal of all goods left by the respondent on the particular site (3) An order under section 34 (2) (b) of the Act that the appellant pay the respondent's costs of and incidental to the removal, destruction or disposal of all goods left by the respondent upon the site. (4) An order for the appellant to pay the ongoing site fees up to and including the date of removal, destruction or disposal of the goods left by the appellant on this site, including late fees and alleged underpayments' (5) An order for the payment of costs
2. It was the evidence of the respondent given in the proceedings that the order of the 11 March 2015 had not been complied with in that "vacant possession" of the site not been given. This was because the "van, annex and various goods" remained on the site. The respondent sought an order that he be paid $19,412.80 so that he could arrange for all of these "goods" to be removed from the site, and vacant possession could thereby be given.
3. It was the position of the appellant that she had in fact given vacant possession by not returning to the site after 1 May 2015, and that vacating the premises constituted giving vacant possession. The appellant had also argued that the application for orders sought under section 34 was brought out of time because it was required to be brought within 28 days after the date that possession of the site was given to the respondent mainly 1 May 2015. The Member extended the time for bringing the application, because otherwise the respondent would have been deprived of an opportunity to enforce the orders he had previously obtained.
4. In the course of her decision, the Member noted that the appellant alleged that "the dwelling" on the site was a fixed structure and that it could not be moved. The Member then concluded that vacant possession had not been delivered up to the respondent by the appellant "because she did not remove the van and annex or slab. The Tribunal does not accept that she was unable to do so, or that the van and annex are fixtures." The Member then noted that at the hearing the person appearing for the appellant "did not press these arguments." We assume that this is a reference, at least in part, to an argument that the van and the annex were fixtures.
5. The Member further held at [20] that "The Tribunal is satisfied that the (appellant), having abandoned the site, has left on it items including the van, annex, concrete slabs, fridge, books and assorted other items. The Tribunal finds that the goods are abandoned goods and that it is appropriate to make the orders sought."
6. The Member then proceeded to make an order pursuant to section 34 (2) (b) of the Act that the appellant pay the respondent's costs "of and incidental to the removal, destruction or disposal of all goods left by the respondent" upon the site and ordered that she pay the sum of $19,412.80 to the respondent as the cost of "removing the van, annex and other goods."
7. This sum was based on a quotation obtained by the respondent which was in evidence. It was for the demolition and removal of "Asbestos cement clad, metal roofed concrete slab structure, Caravan, awning including all associated rubbish and foundations. All demolition house debris to a licensed landfill or recycling yard."
8. The Member then dealt with certain other costs being site fees and the like and ordered that the appellant pay to the respondent the sum of $2,335.30 together with a further sum calculated at a daily rate from 24 December 2015 until the "abandoned goods" were removed from the site, or until 15 January 2016, which ever occurred first.
9. The appeal challenges the order for compensation being the demolition and removal costs and the order for the payment of outstanding and future fees.
10. There are two significant matters which require examination for the purpose of dealing with these appeal proceedings.

Restrictions on the powers of the Tribunal

1. Before considering these two matters it is first necessary to note that, as a statutory Tribunal, its powers, authority and jurisdiction are circumscribed by statute. For present purposes the relevant legislation consists of the Civil and Administrative Tribunal Act 2013 and the Act. The Tribunal has implied powers to enable it to carry out its functions, and to avoid futility of its process. (See Kirby P (as His Honour then was) in Household Financial Services Limited v Commercial Tribunal of NSW (1995) 36 NSW LR 220 at 231) It is well established that the Tribunal does not possess an inherent power of the kind which reposes in courts of common law. Accordingly, the exercise of any power must be examined against the legislative regime which imbues it with jurisdiction. This Tribunal has general jurisdiction over a matter where the Act enables it to make decisions or exercise functions of a kind specified in the Act. Furthermore, the Tribunal has additional jurisdiction of the kind described in section 29 (2) of the Civil and Administrative Tribunal Act being the jurisdiction to make ancillary and interlocutory decisions and to "exercise such other functions as are conferred or imposed…." under that Act or the Act.
2. Whatever be the source of jurisdiction and power, the Tribunal must identify that source, unless the circumstances are so obvious that there is no need to state it.

Compensation for demolition and removal of "abandoned goods."

1. We raised with the respondent whether the Member was empowered to make this order having regard to the provisions of section 34 of the Act. Section 34 is in the following terms; '34 Goods abandoned by occupant after occupation agreement is terminated 1) If an occupation agreement is terminated and goods are left by the occupant on the site, the person who was the park owner under that agreement may: (a) apply to the Tribunal for an order under this section, or (b) remove, store, sell or otherwise dispose of the goods in accordance with any provision made by the regulations, or both. (2) The Tribunal may, on application under this section by the person who was the park owner under an occupation agreement, make any one or more of the following orders: (a) an order authorising the removal, destruction, sale or other disposal of goods left on the site, (b) an order authorising the sale of abandoned goods, (c) an order directing that notice of any action or proposed action in relation to abandoned goods be given to the former occupant or any other person, (d) an order as to the manner of sale of abandoned goods, (e) an order as to the proceeds of sale of abandoned goods, (f) any ancillary order that the Tribunal, in the circumstances, thinks appropriate. (3) A purchaser of abandoned goods sold by a park owner in accordance with an order of the Tribunal or the regulations who acquires a good title to the goods defeats the interest of the former occupant or any other person who has an interest in the goods. (4) A person who was the park owner under an occupation agreement does not incur any liability in respect of the removal, destruction, sale or other disposal of goods in accordance with an order of the Tribunal or the regulations.'
2. The only orders which the Tribunal is empowered to make under section 34 are those set out in subsection (2). The first two of these orders authorises the park owner to do certain things. The third order ensures that the former occupant is informed about what is to happen. The fourth order deals with the manner in which the abandoned goods are to be sold and the fifth applies to the disposition of the proceeds of sale.
3. The sixth order is expressed to be "ancillary" and of a kind thought appropriate in the circumstances. The respondent submitted that (f) empowered the Member to make the order for the payment of compensation. We disagree. An ancillary order is one which, adapting the Oxford Dictionary definition is one which operates in a supplementary or supporting role providing "necessary support to the primary activities or operation" of the order. Such an order would be facilitative of those which are particularly empowered to be made under the five specified orders (a) - (e) set out in subsection (2). It could, appropriately extend to the manner in which any removal, destruction, sale or other disposal would be effected, the manner in which any notice would be given, and the method by which any proceeds of sale were to be paid. However, an order of the kind made by the Member which creates a new entitlement in the park owner to be paid compensation for the cost of carrying out activities authorised by any order is not an order ancillary to any of the preceding five permitted orders. In our opinion such an order creating an entitlement to be compensated would need to be the subject of specific empowerment under the Act.
4. Such a specific empowerment is to be found in section 33 of the Act which is in the following terms; '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.'
5. Sec 35 provides another example of a power to order the payment of compensation; '35 Goods left by occupant, but not abandoned, after occupation agreement is terminated (1) If an occupation agreement is terminated and goods are left by the occupant on the site: (a) the occupant, or (b) any other person having an interest in the goods, may apply to the Tribunal for an order for the delivery of the goods into the occupant's or other person's possession. (2) The Tribunal may, on application under this section, make any one or more of the following orders: (a) an order for the delivery of the goods into the occupant's or other person's possession, (b) an order requiring the occupant or other person to pay any reasonable costs incurred by the park owner in connection with the removal, storage or delivery of the goods, (c) any ancillary order that the Tribunal, in the circumstances, thinks appropriate. (3) A person who was a park owner under an occupation agreement does not incur any liability in respect of the disposal of goods in accordance with an order of the Tribunal under this Part. (4) To avoid doubt, an application may be made under subsection (1) even though, when the application is made, the goods are no longer on the site because the park owner has removed and stored the goods.'
6. The respondent submitted that the order for the payment of compensation made by the Member could be supported by the application of section 33, and that we should so hold. We are unable to determine whether it would be appropriate for the Member to have made the order for the payment of compensation under this provision. Firstly, the application of the respondent was made under section 34, the Member did not mention section 33 anywhere in her reasons for decision, and she only purported to apply the provisions of section 34. Secondly, whether and to what extent an order may be made under section 33 would require an examination of the provisions of that section in the context of the factual circumstances which applied in the proceedings. We do not have access to the transcript of the proceedings before the Member, nor to all of the evidentiary documentary material provided by the parties. Indeed, during the course of the appeal proceedings before us there was substantial disagreement on a number of key matters between the appellant and Mr Kent, solicitor who appeared for the respondent about what transpired in the course of the proceedings before the Member.
7. In these circumstances it would have been impossible for us to deal with the appeal by way of a new hearing under section 80 (3) of the Civil and Administrative Tribunal Act unless an adjournment was granted, and it would certainly have been inappropriate for us to consider whether any order for the payment of compensation should be made under section 33 of the Act
8. For completeness we note that the respondent submitted that the order for the payment of compensation could also be justified under section 27 of the Act. Such a submission is misconceived. An order under section 27 can only be made consequent upon the exercise by the Tribunal of jurisdiction under section 26 of the Act which is confined to circumstances where there has been an alleged breach or disagreement over an occupation agreement. An application under section 26 must be made during the currency of the agreement or within 30 days after its termination. Section 26 clearly has no application to the circumstances which are the subject of these proceedings.
9. We observe also that the order made by the Member is based on the quotation entitled "demolition quote" dated 30 May 2015 to which we have earlier referred. That is clearly a quotation for the demolition and removal of the items which are described. There is nothing contained in the reasons for decision published by the Member which indicates why an order for payment of compensation was based on the demolition of everything on the site, rather than removal to some other location. The destruction of physical property by demolition is a more extreme measure than mere removal, and it seems to us that it would have been appropriate for some reasons, albeit brief, to have been given for accepting the respondent's' request that the items be demolished.
10. We conclude that the Member was not empowered under section 34 to make an order for the payment of compensation of the kind which was made in these proceedings. We must emphasise that in reaching this conclusion we have confined our consideration to the provisions of section 34 of the Act, and we have not taken into account in any way the concerns that we hold about the power and jurisdiction of the Member to deal with the proceedings in any event, which we shall now discuss.

The application of the Act to these proceedings

1. The relevant provision is section 5: '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.'
2. There are a number of definitions in sec 3 which are relevant: '"site" means a site within a holiday park that is used, or is intended to be used, for the installation of a moveable dwelling for long-term casual occupation and includes any other part of premises (such as a parking space or storeroom) let with the site. "occupation agreement" means any agreement under which a person grants to another person for value a right to occupy a site: (a) whether or not the right is a right of exclusive occupation, and (b) whether the agreement is express or implied, and (c) whether the agreement is oral or in writing, or partly oral and partly in writing. "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. "manufactured home" means a self-contained dwelling (that is, a dwelling that includes at least one kitchen, bathroom, bedroom and living area and that also includes toilet and laundry facilities) that comprises one or more major sections, and is not a registrable moveable dwelling, and includes any associated structures that form part of the dwelling. "relocatable home" means a moveable dwelling that is not: (a) a moveable dwelling that is a motor vehicle, trailer or other registrable vehicle within the meaning of the Road Transport Act 2013 , or (b) a moveable dwelling of a type prescribed by the regulations for the purposes of this paragraph. "site" means a site within a holiday park that is used, or is intended to be used, for the installation of a moveable dwelling for long-term casual occupation and includes any other part of premises (such as a parking space or storeroom) let with the site.'
3. For the purpose of section 34, within Part 8, Abandoned Sites and Goods, there is a definition of Goods in section 31: '31 Meaning of "goods" In this Part: "goods" includes a relocatable home or other moveable dwelling owned by an occupant.
4. It is necessary to refer to one another provision contained within the Act. Schedule 1 to the Act contains terms that are taken to be inserted in every occupation agreement. Included within those terms is clause 26 entitled "Condition of movable dwelling and other structures." It provides "The occupant agrees to make sure that the moveable dwelling and any other structure that the occupant is permitted to erect is kept in a condition allowing it to be moved."
5. It will be seen from an examination of the provisions of the Act which we have set out above, that its purpose is to apply to what are colloquially referred to as "caravan parks" under which a person leaves his or her caravan or other structure on a site for the purpose of occupying it from time to time, but not as his or her permanent place of residence. There is an 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 legislation.
6. This prima facie conclusion is reinforced by the contents of the Second Reading Speech when the Bill which ultimately became the Act was introduced into the Legislative Assembly. We reproduce it in full, because there are a number of references to the intention to apply the legislation to circumstances where an occupant provides his or her own dwelling for location on a site. There is also emphasis on the ability to remove the dwelling. 'Legislative Assembly Holiday Parks (Long-Term Casual Occupation) Bill Hansard Extract 17/09/2002 Second Reading Mr AQUILINA (Riverstone-Minister for Land and Water Conservation, and Minister for Fair Trading) [8.30 p.m.]: I move: That this bill be now read a second time. This bill deals with a very Australian way of life that generations of families have enjoyed in both coastal and inland parts of New South Wales. It has been a great Australian tradition for many people to leave a caravan or other moveable dwelling on location in a caravan or mobile home park for regular recreational use during the year. While the principal place of residence of these people is usually in the suburban parts of our major cities, their on-site vans and dwellings give them a much-loved, affordable and regular escape from the pressures of everyday life. Sites are often rented on a quarterly or yearly basis and occupants are free, within the confines of the local government laws, to come and go as they please during the year. There are believed to be 10,000 or more long-term casual park occupancies in existence in New South Wales, many of them in parks situated on Crown land. Annual occupation fees vary from between $1,000 and $5,000. I am sure that many honourable members will recall with nostalgic delight the carefree holiday times spent in the caravan by the beach or the river, shared with relatives, neighbours or friends. On-site vans made it so convenient to duck away for the weekend or the school holidays. The Department of Fair Trading has come across situations where the same family has had a van located in a caravan park or mobile home village for more than 20 years-sometimes up to 40 years-for casual occupation. The joys of the lifestyle have passed from one generation to the next. This bill recognises this unique way of life and, for the first time, provides appropriate rights and obligations for both occupants and park owners in long-term casual occupancy arrangements. 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. In the consultation process during the development of this bill there was a level of consensus among park owners and occupants that the legal uncertainties surrounding long-term casual park occupancies needed to be removed for the benefit of both parties. The key issues were seen to be standardisation of the forms of contract used in occupancy arrangements, a clear dispute resolution system and the prescribing of some minimum periods of notice for fee increases and termination of occupancy agreements. The bill addresses these and other issues. It is important at this stage to emphasise that this bill cannot be construed as tenancy legislation. It is made quite explicit in the bill that this is general fair trading legislation which, while clarifying the respective rights of the parties, does not confer a landlord and tenant status on the relationship. This would be clearly inappropriate. Casual park occupants have a home elsewhere and their recreational vans and dwellings are not their principal form of shelter. The tenancy laws, which quite rightly provide significant support for tenants whose rented accommodation constitutes their housing, do not have the same relevance to holiday-style arrangements. After all, persons who stay in hotels, lodges and resorts, while having a level of consumer protection and avenues to pursue disputes, obviously do not have the status that a tenant has in his or her relationship with a landlord. Long-term casual park occupants are in a somewhat similar situation, and this position is reflected in the bill. It is important to make this distinction as any expectation that this bill will extend tenancy rights to long-term casual park occupants needs to be quelled at the outset. The non-tenancy nature of casual occupancies is further reflected by the fact that disputes over casual occupancies will be dealt with not in the tenancy divisions of the Consumer, Trader and Tenancy Tribunal but in the general consumer division. One of the main reasons for this bill is that park casuals have no specific rights under any consumer protection legislation. Their position is left uncertain by the fact that many do not have written agreements, they are not subject to any minimum notice periods for fee increases or termination of their occupancy agreements and, significantly, there is no dispute resolution forum that they can access when things go wrong. While most park owners do the right thing, the Department of Fair Trading has been made aware of longstanding casual arrangements being brought to a sudden end over the most trivial of incidents and without any opportunity for the occupants to redress the situation or even to discuss it with the park owner or manager. There have been incidents when occupants have been denied access to their van by the park owner despite having already paid fees in advance. They could neither use their van nor obtain a refund of the money they had paid in advance. While such a situation is clearly unjust, there are few options that an occupant has available for pursuing a complaint. The bill will overcome such unconscionable actions by the minority of park owners and managers who Legislative Assembly Extract - Holiday Parks (Long-Term Casual Occupation) Bill - Tuesday 17 September 2002 adopt such unilateral "take it or leave it" attitudes. These people do no favours to the majority of park owners and managers, who adopt a far more professional and understanding approach to the management of their businesses. The bill will remedy each of these deficiencies and will also include other provisions to give the parties more certainty in important aspects of their ongoing relationship. I would now like to outline briefly the main contents of the bill. The bill will apply to long-term casual occupancies only. It will come into play when a site is occupied for the placing of a person's own van or similar moveable place of abode for casual recreational use for a period of at least 12 months. Persons who have been in a casual occupancy for 12 months already will be covered immediately. Prospective occupancies of at least 12 months will also be covered. Occupancies that have no fixed term will be covered as soon as they have been in existence for the minimum 12-month time frame. Short-term tourist and holiday occupation and arrangements where people occupy a van or dwelling owned by the park owner will not be covered. Park owners need not fear that the bill will affect their dealings in the short-term holiday market. It is the quite discrete long-term casual recreational market where people place their own vans on site that is being targeted by this bill. In line with other fair trading legislation dealing with entering into long-term relationships with a trader, park owners will be required to provide advance information to prospective long-term casuals on the important aspects of occupying a site within the park. This is one way of eliminating later disputes about the nature of the arrangement and will help to reduce the prospect of possible misunderstandings over the respective expectations of the parties. The required information will relate to a number of important items including: the amount of the occupation fees; whether the fee will vary during peak holiday periods; whether there will be extra charges for visitors; how much notice occupants will receive for fee increases; whether occupants are permitted to sell their van on site and the details of any associated commission arrangements; and who pays for the cost of relocating a van within the park. One of the major initiatives of the bill is to provide for a consistent form of occupancy agreement. The lack of written contracts applying to existing arrangements is one of the identified problem areas. If a dispute arises it is difficult for both parties, but particularly occupants, to pursue their cause as the terms of the agreement have often never been formalised on paper. The bill provides a standard form of agreement which will deal with the main issues arising in the relationship between the occupant and park owner. Included in the agreement will be the length of the agreement and any provision for holding over the occupancy fee and other fees, the period of notice to be given for fee increases and termination of the agreement and who is entitled to occupy the site. The agreement will also include obligations on occupants in regard to payment of fees on time, behaviour and proper use of their site. Obligations on park owners will include the issuing of receipts for payment of fees, allowing occupants to use their sites without undue interruption and ensuring that tradespeople engaged by occupants are given access. There is also room in the agreement for provisions to be included about selling vans on-site and any associated commission arrangements. There will be flexibility for park owners to add clauses to their agreements to deal with issues arising in their park although some matters may not be changed. For instance, the minimum period of notice that a park owner may give to an occupant to terminate the agreement, that is where there is no breach of agreement by the occupant, is three months. This will allow occupants an adequate time to move their van or to make other arrangements. Of course, the three months notice cannot take effect during a fixed-term agreement. Where there is a breach of an agreement, either party can give the other seven days notice of termination. Occupation fee increases will have to be preceded by at least 30 days written notice. Casuals will not be required to pay occupation fees more than three months in advance. If fees have been paid in advance and the park owner terminates the agreement, the balance of any fees paid in advance will have to be refunded. The bill provides for a clear dispute resolution process. This is a major improvement to the current situation where the opportunity to have a disagreement or dispute resolved in connection with a casual occupancy relationship is extremely limited. The Consumer, Trader and Tenancy Tribunal will provide the circuit-breaker. By having access to this forum, legal costs, formalities and delays will be minimised and the parties will quickly know where they stand should difficulties arise in their contractual relationship. The tribunal's main role will be to adjudicate disputes on issues arising under occupancy contracts, whether a breach by either party has occurred and whether an order should be made in relation to the breach. I would hope that in most cases the outcome will be that the parties can resume their relationship in a positive manner. The tribunal will not have the same powers as it has for residential tenancy matters. It will not be able to rule on whether a fee increase is unreasonable as it can for rents on residential tenancies, nor will park owners be required to obtain an order from the tribunal before taking possession of a site from an occupant whose agreement has come to an end. These are important jurisdictional differences and further highlight the fundamental dissimilarities between accommodation used on a recreational basis and that used as a permanent and primary place of abode. While a park owner will not have to go to the tribunal to take possession of a site from a casual occupant after giving the correct notice, there will be a stiff penalty for any park owner who dispossesses a person incorrectly. The bill includes a maximum penalty of $5,500 for incorrect termination. I am sure that this will discourage park owners from taking arbitrary action. In addition, the tribunal will have the power to order the park owner to give the correct notice before proceeding with a termination. If, in the process of dealing with a breach, the tribunal considers that it is appropriate to do so, it may terminate an occupancy agreement. The bill will ensure an orderly process when the time comes for a park owner to sever his or her relationship with their casual occupants. It is only fair and reasonable that a person who has been a casual occupant of a park for many years and who would often have an emotive attachment to the park, its location and fellow occupants, is provided with a dignified conclusion to the arrangement. Some of them are pensioners or otherwise on limited Legislative Assembly Extract - Holiday Parks (Long-Term Casual Occupation) Bill - Tuesday 17 September 2002 incomes and there needs to be time to sort out their affairs after the park owner elects not to renew the occupancy. The van probably has to be moved or sold and this obviously takes a little time. The three months is considered to be reasonable to both parties in this situation. The Government recognises that park owners will sometimes make a business choice to no longer provide sites for long-term casual occupation purposes. This bill does not interfere in these commercial decisions. But it does ensure that occupants affected are given a reasonable time to make the necessary arrangements to sell or move their moveable dwellings. The tribunal will not have the same compensation awarding powers as it does for the termination of permanent park tenancies. In those situations, the permanent residents have to make provision for a new principal place of residence which may involve moving their dwelling to another park, with all the consequential costs of connection to services. While a long-term casual occupant may also have expenses in moving a dwelling from its site, the fact that it is not their main home and that it is not essential for them to retain the dwelling is of significance. The bill provides for a number of other matters. It allows for the making of park rules for casual occupancies, it makes provision for the formation of a consultative committee comprised of park management, and casual occupants and processes to deal with items of common interest are included to deal with goods left behind or abandoned by casual occupants. This bill is a balanced piece of fair trading legislation. It provides surety to the parties without interfering unreasonably in the business operations of park owners nor occupation rights of those in long-term casual arrangements. I am proud to present this bill today. My appreciation is extended to Darrell O'Connor, a foundation member of the Recreational Van and Home Owners Association, for his tireless work in the interests of long-term park casuals, and the Caravan and Camping Industry Association, which has taken'
7. We have previously referred to the limited information available about the structures on the site. The photographs which were in evidence before the Member show a caravan, the wheels (if any) of which are obscured. There is also shown the side view of a structure which appears to be made out of metal. That side appears to be slightly shorter than the side of the caravan. There also appears to be a covering erected over both structures made of some rigid material supported by poles sunk into the ground. The decision of the Member describes what was on the site as consisting of a "van annex and slab." Presumably the annex is the structure which we have referred to. The demolition quotation refers to "asbestos cement clad, metal roofed concrete slab structure" together with a caravan awning and… foundations" This latter description may be the most accurate description of what was on the site.
8. It is unclear to us that the "annex", which we assume is the asbestos cement clad, metal roofed concrete slab structure together with foundations is moveable. There must be some doubt, therefore, whether the structure is a "moveable dwelling" and is therefore one to which the Act applies. We do not express this opinion with any certainty, and we are conscious also of the inclusion within the provisions of the Act of a definition of manufactured home.
9. The decision of the Member does not contain any more detailed description of the structures on the site. There is a reference to a van annex and slab, but nothing further. There is a reference to an assertion made by the appellant that "the dwelling is a fixed structure and cannot be moved." There is later, as we have said, a reference to a concession purportedly made by the appellant that the van and annex were not fixtures. The Member said "The Tribunal does not accept that ... the van and annex are fixtures." Whether or not the van and annex were not fixtures is not necessarily determinative of whether there existed on the site at the relevant time a moveable dwelling for the purposes of the Act.
10. There is no clear indication given in the decision that the concession made by the appellant also constituted a concession that the structures on the site constituted moveable dwellings for the purpose of the Act. Even if it did, parties to proceedings before the Tribunal cannot bestow jurisdiction on the Tribunal by consent. It is a prerequisite to the exercise of jurisdiction that such jurisdiction be established to the satisfaction of the Tribunal. Without there being a specific finding that the structures constituted a moveable dwelling for the purpose of the Act, or some description of the structures which would leave no doubt that they constituted a moveable dwelling and that the Member was cognisant of the need to establish jurisdiction and power, there can be no established basis for the purported exercise of jurisdiction and powers to make orders under the Act.
11. We readily admit that the determination of whether the structures on this particular site constituted moveable dwellings, whether in whole or in part, may not be an easy task. Almost everything can be moved and might thereby be said to be "moveable." Even the London Bridge was moved to Arizona, USA. However, the reference to a moveable dwelling as contained within section 5 of the Act is, in our opinion, intended to refer to a structure which is capable of being left on the site, but capable also of being removed at the end of the occupation agreement. A caravan will obviously fit this description. A demountable structure, often used on building sites, in schools and at entertainment functions will also generally fit this description. This will be so whether or not services or utilities are attached to the structure. It may also be necessary to erect footings or other mechanisms on which to place such a structure. This may not detract from the structure being characterised as moveable. Certainty may only be injected into this hypothetical discussion by an examination of the structure itself including the manner in which it rests upon, or is installed or erected on the site as contemplated by the definition of "holiday park" contained within section 3 of the Act. In the circumstances of these proceedings there is a reference to a concrete slab. We do not know how large it is, whether it contains steel reinforcing or the like, and the manner in which it has been placed on or within the ground comprising the site. In general terms, we would not characterise a concrete slab upon which some form of structure occupied as a dwelling as being moveable. There is no information about whether the structure sitting on top of the slab was affixed to it, and in what manner. Again, this is hypothesis and should be subject to factual examination so as to inject certainty. Whatever the difficulties in making such a determination, there is nothing contained within the decision of the Member the subject of the appeal that indicates that any examination was undertaken so as to enable a determination to be made, and there is nothing contained within the decision which expresses the making of such a determination.
12. Arguably, this matter is even further complicated because the structures include a caravan which is likely to be characterised as moveable and a slab and roof type covering which may arguably be characterised as falling outside what is moveable. The "annex" structure is of unknown character. If these hypotheses are correct, it is not clear whether the Act would apply to some of the structures, all of the structures, or none of them.
13. There being no factual finding that any of the structures constitute a moveable dwelling, and therefore no established basis for the exercise of jurisdiction and power under the Act, it follows that the decision of the Member must be quashed.

The status of the first proceedings

1. For completeness we wish to note that the first proceedings are not before us. Furthermore, there has been no appeal from that decision, and, prima facie, it has the full force and effect of a decision of this Tribunal. On one basis, the appellant is estopped from seeking to go behind that decision. Certainly, as presently advised, it would be inappropriate for us to do anything which would have the effect of undermining that decision, and we have endeavoured not to do so.
2. We emphasise that we are concerned only with the decision under appeal, and its validity and effect. In that the Member has purported to exercise jurisdiction and power under the Act in making that decision, we are entitled on appeal from that decision to determine its effectiveness and its validity.

Conclusion

1. So far, we have not discussed the order for the payment of site fees. If the decision of the Member is to be quashed, there is no point in doing so. However, the circumstances pertaining to the order for compensation for demolition and removal is in a different category, because it was clearly beyond the purported basis for the exercise of that power.
2. It remains necessary to determine the further course of the proceedings between the appellant and the respondent. In having held that the decision of the Member should be quashed, the result is that there has been no determination of the proceedings between the parties, especially as they concern the claim for unpaid site fees brought by the respondent against the appellant. In the circumstances it would appear that the appropriate course is to refer the matter back to the Member for determination of the proceedings in accordance with the jurisdiction and power invested in the Tribunal by the relevant legislation. However, such remission should exclude the order for payment of compensation as sought by the respondent, because it was based on sec 34, and we have determined that that provision does not permit such an order to be made. We shall proceed accordingly.

Orders

1. We make the following orders; 1. Leave is granted to the appellant to bring these appeal proceedings out of time. 2. The decision of the Tribunal made on 5 January 2016 is quashed. 3. The proceedings are remitted to the Member for determination, except for the claim for compensation, having regard to these reasons for decision.

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: 15 April 2016