2 Initially, the Applicant relied solely on sections 206V and 210B of the Act. However, through the course of the hearing on 14 February, the parties raised and argued issues beyond these provisions. As a result, I gave the parties further time to file supplementary submissions to address any issues arising from the hearing. Upon receipt of the supplementary submissions, I directed that the matter be listed for further hearing, which proceeded on 17 April 2012.

3 The facts in this case were largely undisputed. The parties agreed that, on 29 February 2008, the Applicant entered into a Residential Site Agreement ("the site agreement") with the Respondent, which conferred on the Applicant the right to reside on the site at Brookfield Village, Melton, for a term of 45 years with an option to renew for 45 years on the terms specified in the site agreement.

4 At the time of signing the site agreement, the parties signed a Home Purchase Agreement ("the home purchase agreement"), pursuant to which the Applicant agreed to purchase a Village Home to be manufactured by the Respondent and located by the Respondent on the site in accordance with the terms and conditions specified in the home purchase agreement.

5 On 31 July 2008, the Applicant took possession of the site and the site agreement commenced on that date.

6 The site agreement contains Schedule 1- Resident Reference Schedule ("Schedule 1") which outlines the particulars of the site agreement. Items number 6 and 9 of Schedule 1 are relevant in this proceeding. They are: "Item 6: Rent: To be the applicable rent at the time of settlement. The rent at the date of signing is $130.67." and "Item 9: Manner and Timing of Review of Rent: Annual Rent Review date (1 July in each year) in writing, with 60 days written notice, based upon CPI or 3.5% which ever is the greater."

7 Other operative provisions contained in the site agreement relevant in this proceeding are:

This agreement is an agreement for the purposes of section 144 of the Act. The provisions of the Act and in particular Part 4 of the Act, Residency Rights and Duties, apply to this Agreement. All provisions of the agreement shall be read and interpreted as if the words "Subject to the provisions of the Act" were inserted before each and every provision."

(1) The rent will, subject to and in accordance with the Act, increase on each Annual Rent Review Date (1 July in each year) in the manner set out in Item 9 of the Schedule.

(2) The rent will, subject to and in accordance with the Act, increase on any Other Rent Review date as nominated by the Village Operator by notice to the Resident."

8 At the time of signing the site agreement in February 2008, the applicable rent was $130.67 per week. At the time the Applicant took possession of the site on 31 July 2008, the rent was $136.16 per week, having increased on 1 July 2008.

9. The rent payable under the site agreement has since increased on 1 July each year. Specifically, on 1 July 2009 the applicable rent increased to $141.20 per week, on 1 July 2010 to $146.14 per week and on 1 July 2011 to $151.25 per week. The Applicant was advised of the increases in 2009, 2010 and 2011 by way of a simple letter sent to him at least 60 days prior to the 1 July of each year stating that the rent will increase to a specified amount on 1 July.

10 No letter was given to the Applicant advising of the increase in 2008. The Respondent's explanation for this was that, as at 1 July 2008, the Applicant was not yet a resident at the Village and the necessary 60 day notice in writing was most probably overlooked. The Respondent maintained that, in any event, it was not obliged to give the Applicant notice of rent increase at all as the site agreement clearly specified the basis of the rent increases and that the letters were sent only as a matter of courtesy and convenience to the Applicant.

11 One question of fact which was in dispute related to the circumstances surrounding the signing of the site and home purchase agreements. The Applicant stated that he did not obtain independent legal advice and relied solely on the Respondents representative to explain the terms of the agreements to him. The Respondent's evidence was that their representative Graeme Ellis spent over one hour going over the site agreement with the Applicant. The Respondent submitted that it is their practice to advise parties to also obtain their own independent legal advice. The Applicant denied that he was so advised.

12 The sections of the Act raised by the parties in this proceeding were sections 206V, 210B, 152, 153 and 144.

13 Sections 206V and 210B were introduced into the Act by the Residential Tenancies (Amendment) Act 2010 ("the Amending Act") which came into operation on 1 September 2011. They are:

s206V. How much notice is required of rent increase?

(1) A site owner must give a site tenant at least 60 days notice in the prescribed form of a proposed rent increase under-

• (a) a site agreement; or

• (b) a proposed site agreement that is to replace an existing site agreement.

(2) A notice of proposed rent increase under sub-section (1) may only provide for one rent increase.

(3) The notice of proposed rent increase must include a statement informing the site tenant of the site tenant's right under section 206W to apply within 30 days after the notice is given to the Director to investigate and report on the proposed rent.

(4) A site owner must not increase the rent payable by a site tenant at intervals of less than 6 months.

(5) A rent increase in contravention of this section is invalid despite anything to the contrary in the site agreement.

s210B. Application to theTribunal by site tenant or site owner for compensation.

(1) A party to a site agreement may apply to the Tribunal for an order for payment to the applicant by the other party to the site agreement of compensation for loss or damage suffered by the applicant because-

• (a) the other party failed to comply with the site agreement or that party's duties under this Act relating to the site agreement; or
• (b) the applicant has paid to the other party more than the applicant is required to pay in accordance with this Act or the site agreement.

(2) This section does not apply to a duty under a duty provision or section 206ZR.

1. The Amending Act inserted Part 4A into the Act which now regulates site agreements and the relationship between parties to site agreements. The site agreement between the Applicant and the Respondent in this proceeding is now (and has been since 1 September 2011) subject to these new Part 4A provisions.
2. Prior to the introduction of Part 4A, the site agreement and the relationship between the parties were regulated by Part 4 of the Act, which included, inter alia, sections 144, 152 and 153. They are:

(1) A resident and a caravan park owner may enter an agreement specifying the terms and conditions of the resident's use and enjoyment of the caravan park.

(2) A resident and a caravan park owner may enter an agreement specifying the terms and conditions of the resident's use and enjoyment of the caravan.

(3) A caravan park owner and a caravan owner may enter an agreement specifying the terms and conditions of the occupancy of a site by a caravan.

(4) A term or condition in an agreement under this section that is inconsistent with this Act or that purports to exclude, restrict or modify the application of or exercise of a right conferred by this Act is invalid.

(5) In his section "resident" includes a proposed resident.

s152. How much notice is required of rent or hiring charge increase?

(1) A caravan park owner must give a resident at least 60 days notice in the prescribed form of a proposed rent increase.

(2) A caravan owner must give a resident at least 60 days notice in the prescribed form of a proposed rent increase.

(3) A notice of proposed rent increase under sub-section (1) or a proposed hiring charge increase under sub-section (2) may only provide for one rent increase or hiring charge increase.

(4) If the caravan park owner is also the caravan owner or the agent of the caravan owner, the notice must specify the rent increase and hiring charge increase separately.

(5) The notice of proposed rent increase or hiring charge increase must include a statement informing the resident of the resident's right under section 153 to apply within 30 days after the notice is given to the Director to investigate and report on the proposed rent or hiring charge.

(5A) A caravan park owner must not increase the rent payable by a resident at intervals of less than 6 months.

(5B) A caravan owner must not increase the hiring charge payable by a resident at intervals of less than 6 months.

(6) A rent increase or hiring charge increase in contravention of this section is invalid.

s153. Resident may complain to Director about excessive rent or hiring charge

(1) A resident of a caravan park may apply to the Director to investigate and report if the resident has received a notice of a rent increase or hiring charge increase and the resident considers that the proposed rent or hiring charge is excessive.

(2) An application under sub-section (1) must be made in writing within 30 days after the notice of the rent or hiring charge increase is given.

(3) As soon as practicable after receiving an application, the Director must-

• (a) carry out an investigation; and

• (b) give written report to the resident and a copy of the report to the caravan park owner or caravan owner.

(4) The report of the director must-

• (a) include a statement informing the resident of the resident's right under section 154 to apply to the Tribunal for an order in respect of the proposed rent of hiring charge; and
• (b) take into account the matters referred to in section 155(3).

The submissions initially made on behalf of the Applicant

1. Initially, the Applicant brought the application solely on the basis of s206V and 210B of the Act. In submissions delivered at the first hearing on 14 February 2012, the Applicant maintained that the site owner failed to comply with s206V of the Act in purporting to increase the rent from $130.67 per week in 2008 to $302.50 per fortnight (or $151.25 per week) in 2011 and by reason of that failure, any increases in rent were invalidly imposed.
2. The Applicant contended that the rent payable should be $130.67 per week on the grounds that:

1. The site tenant did not receive any notice of rent increase in July 2008. 2. That each purported notice of rent increase in 2009, 2010 and 2011 was not in prescribed form insofar as it did not inform the site tenant of the site tenant's right under section 206W of the Act to apply to the Director, within 30 days after the notice was given, to investigate and report on the proposed rent.

1. The site tenant has not received any valid notice of purported rent increase at any stage throughout the site tenancy and cannot be considered liable for any increased rent charges that have accrued since 31 July 2008. The tenant can therefore be liable only for the ongoing rent of $130.67 per week.

1. Furthermore, the tenant should not be liable for any increased amount of rent until he has been properly notified in the manner prescribed by s206V of the Act.

The submissions initially made on behalf of the Respondent

1. In written submissions dated 8 February 2012, the Respondent conceded an error in the calculation of the rent increases applicable to this site tenancy. In assessing the rent increases since 31 July 2008, the Respondent applied the method of calculation referred to in Item 9 of Schedule 1 (being CPI or 3.5%, whichever is the greater). However, by a detailed reassessment of CPI increases and the actual rent increases imposed since 31 July 2008, the Respondent submitted that, since this date, the tenant has been overcharged a total of $43.84. The Respondent stated that this amount has now been refunded to the tenant.
2. Thereafter, the Respondent rejected that the Applicant's submissions, contending, inter alia, that:

1. "Section 206V of the Act did not come into operation until 1 September 2011 and has no application whatsoever to the issues in this application." 2. "In any event, and without prejudice to paragraph a, the relevant rent increases in this case are not "proposed rent increases" within the meaning of the Act."

1. "That prior to the introduction of Part 4A, the site agreement and the relationship between the parties to the site agreement were regulated by Part 4 of the Act, which includes s152. Section 152 refers to "proposed rent increase". Given that the term "proposed rent increase" is not defined in the Act, nor is the word "proposed", it must be given its ordinary meaning."

1. "The Australian Concise Oxford Dictionary defines "propose" as "put forward for consideration". The Macquarie Concise Dictionary defines it as "to put forward (a matter, subject, case, etc) for consideration, acceptance or action; to put forward or suggest as something to be done"." 2. "The applicant's case relies solely on the fact that the rent has increased on each of the relevant dates. In considering whether or not s152 and, since 1 September 2011, s206V of the Act applies to any rent increase, the emphasis should be on the word "proposed" rather than "increase". In other words, the question for the Tribunal is whether each of the relevant rent increases constitutes a proposal by the respondent to increase the rent." 3. "By definition a proposal to increase the rent would require the respondent to put forward for the applicant's consideration a rental figure which the respondent proposed to be applied on and from a particular date specified in the notice. This is something quite different from the parties agreeing at the outset of their relationship upon a predetermined basis for rent to be increased throughout the term of the site agreement." 4. That "a proposed rent increase" contemplates that a site owner will "arbitrarily put forward for consideration of the tenant a proposal that the rent be increased". Such a proposal must comply with s152 and since 1 September 2011, s206V of the Act. This is very different to "rental increase made pursuant to a predetermined formula agreed by the parties at the outset" which is "nothing more than an increase brought about pursuant to the clear agreement between the parties". 5. That "the respondent is not obliged under either s152 or s206V to provide a notice of the rent increase at all as the site agreement clearly specifies the basis upon which the rent is to be increased" and that the letters advising of the new rent were "sent by the respondent as a courtesy to and for the convenience of the applicant".

The supplementary submissions made on behalf of the applicant

1. The Applicant filed supplementary submissions on 22 February 2012 maintaining, inter alia, that:

1. "any term of an agreement which purports to increase rent in any way other than in accordance with the [Act] necessarily modifies a resident's right to receive proper notice under s152" and is therefore invalid pursuant to s144(4). 2. The site agreement refers to "60 written notice" of rent increase, suggesting that the respondent "was aware of the need for any rent increase to comply with" the Act.

1. That the phrase "proposed rent increase" should be given the same meaning as it is in s44 of the Act, which contemplates a rent increase during a fixed term residential tenancy, where the increase of a pre-determined amount has been agreed to at the signing of the tenancy agreement. The applicant submits that it is accepted that the landlord in such circumstances is obliged to give notice in prescribed form in accordance with the Act.

1. The phrase "proposed rent increase" should be understood as "a future increase that has not yet taken effect".
2. In further supplementary submissions filed on 9 March 2012, the Applicant further contended, inter alia, that:

a. Despite the inclusion of a term for rent increases in the site agreement, they remain "proposed" rent increases until such time as they are validly introduced in accordance with the [Act]".

b. The word "proposed" is included in s152 for the purpose of "clarifying that a rent increase does not take effect until such time as proper notice is given and the [Act] is complied with. It will therefore remain a "proposed rent increase" and not an actual "rent increase".

c. The provisions of the Act apply to the relationship between the parties and that "any term of any agreement between the applicant and the respondent, notwithstanding how 'clear' or 'unambiguous' it may be, is invalid and of no effect if it is inconsistent with the Act or purports to exclude, restrict of modify the application or exercise of a right conferred by the [Act]: s144(4)."

d. The applicant refutes the respondent's submission that the applicant has no cause of action to claim compensation and the applicant maintains that it is well established that a tenant who pays money pursuant to invalid notices of rent increase is entitled to have "the moneys acquired by that mechanism...returned to him...from whom they were invalidly extracted": per Harper J in Jeffrey v Fitzroy Collingwood Rental Housing Association Ltd [1999] VSC 335 at paragraph 44.

The supplementary submissions made on behalf of the Respondent

1. The Respondent filed further supplementary submissions on 27 February 2012 maintaining, inter alia, that:

1. "The site agreement is an agreement for the purposes of s144 of the Act." 2. "The Act does not prescribe or in any way limit the manner in which rent under an agreement pursuant to s 144 of the Act may be adjusted, reviewed or increased."

1. It is true "that s144(4) of the Act provides that an agreement for the purposes of s144 that is inconsistent with the Act or that purports to exclude, restrict or modify the application of or the exercise of a right conferred by the Act is invalid."

1. The right claimed by the Applicant as being denied is the right under s153 of the Act to refer a proposed rent increase to the Director of Consumer Affairs and that this right arises only if there is a "proposed rent increase". 2. In the present case, there is no such thing but rather a rent increase in accordance with a clear and unambiguous agreement between the parties : "there is nothing being proposed by one for the consideration of the other. All that is occurring is that the calculation of the agreed increase is being made by the Respondent and advised to the Applicant." Therefore, the right conferred under s153 does not arise. 3. In the alternative, if the rent increase in the site agreement is a "proposed rent increase" within the meaning of the Act, the Applicant's claim under s210B is misconceived as that provision was introduced into the Act with effect from 1 September 2011 and does not apply in the present case as it "was not in the Act at the time of the rent increases complained of". 4. Even if s210B is applied retrospectively, the Applicant has failed to establish any loss or damage for any of the reasons specified in s210B or at all. 5. Irrespective of whether s210B applies or not, the Applicant must be able to establish that he has paid to the Respondent more than he would have been required to pay under the site agreement and "to do that, the Applicant must show that a complaint by him to the Director...would have resulted in a reduction of the rent increase ordained by the site agreement". 6. Further, the Applicant would have to show that he is entitled to compensation. He has had the benefit of the increased services conferred under the agreement. An award of compensation would not compensate him but would lead to a windfall in his favour. Compensation under the Act seeks to put the claimant in the position he would have been in had the Act been complied with. 7. In the present case, the Applicant has not led any evidence of loss. 8. The Applicant claims and receives rental assistance from the Federal Government, which is calculated and based on the amount of rental paid. The Applicant will have an obligation to repay the Federal Government in respect of rent assistance overpaid and any order of the Tribunal should take that into account.

The Respondents failure to serve a 60 day notice in writing in 2008

1. I find that, contrary to both the site agreement and the Act, the Respondent failed to give the Applicant any notice of the rent increase in 2008. It is not disputed that the Applicant signed the site agreement on 29 February 2008 with a rent of $130.67 per week. Pursuant to that site agreement, he was entitled to 60 days written notice of any increase, which would take effect on 1 July each year. He did not receive any written notice of the proposed increase for July 2008. Accordingly, he was entitled to expect that, on the date he took possession, his rent would be fixed at $130.67 given that he was not notified of any other amount.
2. I reject the Respondent's submission that they were not obliged to serve any notice as the site agreement clearly specifies the basis upon which the rent was to be increased. I find that the requirement to serve a 60 day notice in writing is not merely "for the convenience or a courtesy" to the Applicant; it is a clear and unambiguous term of the site agreement itself and a requirement under that Act which regulates the agreement.
3. This failure to serve a 60 day written notice in 2008 has the effect of tainting all subsequent rent increases. Whilst the rent increases in 2009, 2010 and 2011 were made with 60 days notice in writing, they are nonetheless invalid as they are based on a miscalculation of the applicable rent.
4. The 2008 rent increase is invalid as no 60 notice in writing was served. The rent therefore remained at $130.67. The 2009 rent increase is invalid because the increase was calculated on rent of $136.16, not $130.67. The increase in 2009 to $141.20 represents an increase of over 7%. It is an increase greater than the CPI or 3.5%, therefore contrary to the predetermined basis of calculation contained in the site agreement.
5. The Applicant can succeed on this basis alone: that the Respondent's failure to serve a written notice in 2008 renders all subsequent calculations of rent increase flawed and contrary to the terms of the site agreement itself.
6. However, I find that there are other bases upon which his application also succeeds.

1. I accept the Respondent's submission that the operation of sections 206V and 210B of the Act have no application to the issues in this proceeding. These provisions came into operation on 1 September 2011. The rent increases in July 2008, 2009, 2010 and 2011 predate their operation. I find that, at all relevant times, the site agreement and the relationship between the parties, including the four relevant rent increases, were regulated by Part 4 of the Act.
2. I find that the Applicant's claim under s210B is misconceived and cannot be retrospectively applied. I accept the Respondent's submission that, even if s210B applied, no compensation would be payable to the Applicant as he has not led any evidence of loss nor established any entitlement to compensation.
3. However, as s210B does not apply, the question of compensation is irrelevant. The refund to the Applicant in this case is not in the form of compensation for an established loss but rather a refund of moneys invalidly obtained. I accept the reasoning of Harper J in Jeffrey's case, where he holds at paragraph 44: "Each of the rent increases referred to...were invalidly imposed. Being invalid, the money's acquired by that mechanism must be returned to him from whom they were invalidly extracted".

1. I find that the site agreement is subject to the Act and is regulated by the provisions of Part 4.
2. I find that the rent increases referred to in the site agreement are "proposed rent increases" within the meaning of the Act. The rent increases provided for in the site agreement are not fixed or definite; they are merely calculable by a predetermined formula. The fact that the method of calculation is agreed upon does not mean that the amount specified in the notice of rent increase is agreed to or predetermined.
3. I accept the Applicant's contentions that despite any method agreed to in the site agreement, the rent increases remain "proposed" until such time as they are validly introduced in accordance with the Act. I accept that a rent increase does not take effect until proper notice is given and the Act complied with and that it will therefore remain a "proposed rent increase" and not an "actual rent increase" until such time as these requirements are met.
4. I find that the figure put forward by the Respondent each year represents a proposal capable of being challenged on grounds such as the method of calculation, the quantum of the variables (one being the Consumer Price Index) or the accuracy of the amount itself. Another basis upon which it may be challenged is whether the site agreement itself has been complied with.
5. The failure to give notice in 2008 is one example of a failure by a party to comply with the site agreement and demonstrates very effectively how, despite the parties' best efforts to provide clarity and certainty in that agreement, those "clear and unambiguous" terms were not complied with. The right to challenge therefore is necessary even in the clearest, most unambiguous of agreements.
6. Clause 1.3 of the site agreement states that the provisions of Act and in particular Part 4 of the Act apply to the agreement and that "[a]ll provisions of the Agreement shall be read and interpreted as if the words "Subject to the provisions of the Act" were inserted before each and every provision". The requirement to give 60 days written notice is one such provision and must therefore be read and interpreted subject to the provisions of the Act.
7. Clause 4.1 of the site agreement also provides that "the rent will, subject to and in accordance with the Act, increase on each Annual Rent Review Date (1 July each year) in the manner set out in Item 9 of the Schedule".
8. Accordingly, I find that the 60 day notice in writing specified in Item 9 must be made in prescribed form in accordance with s152 of the Act. As the Respondent failed to do so, I find that the notices served in 2009, 2010 and 2011 are invalid.
9. I find that the notices of rent increase served throughout this site agreement are invalid either way. The failure to serve any notice in 2008 renders the 2009, 2010 and 2011 notices invalid as they based on flawed calculations of the applicable rent (making them contrary to the terms of the site agreement itself) and the failure to serve the 2009, 2012 and 2011 notices in prescribed form renders them invalid for failing to comply with the provisions of the Act.
10. For these reasons, the Applicant is liable to pay rent fixed at $130.67 per week from 31 July 2008 until such time as he receives a valid notice of proposed rent increase and that notice of proposed rent increase takes effect. Furthermore, the Respondent must refund all rent overpaid by these invalid notices.
11. I order accordingly. I give the parties leave to apply in the event that they are unable to reach agreement on the amount of rent overpaid.