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(b) for specific performance; or
(c) that is ancillary or incidental in nature; or
(d) in the alternative so that a particular
order takes effect, or does not take effect,
according to whether the conditions of
the original order are complied with.
(2) An order under this section may include such
conditions as the Tribunal considers appropriate.
100. Tribunal may rescind or vary unfair or
unconscionable terms
(1) The Tribunal may, on application by a resident,
make an order rescinding or varying a term of a
residential park agreement if satisfied that the
term is unfair or unconscionable.
(2) On making an order under subsection (1), the
Tribunal may make consequential changes to the
residential park agreement or another related
document.
101. Park owner may make urgent application to
terminate residential park agreement
(1) If a resident is given a notice to leave under
Division 3 of Part 4, the park owner may apply
to the Tribunal for an order that the residential
park agreement in respect of that resident be
terminated.
(2) An application under subsection (1) must be
made within 2 working days after the notice to
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leave is given to the resident to which the
application relates.
(3) On hearing an application under this section, the
Tribunal may make an order that –
(a) terminates the residential park agreement
as at the date of the order and make an
order for possession of the rented
property; or
(b) terminates the residential park
agreement, as specified in the order, and
authorises the resident to be on site
solely for the purpose of –
(i) removing the resident’s property
from the site; or
(ii) selling a dwelling on the site in
accordance with this Act; or
(c) vests the residential park agreement in a
person, other than the resident, who
resides or resided on the rented property
with the resident; or
(d) allows the resident to resume occupation
of the rented property under the
residential park agreement.
(4) The Tribunal must not determine an application
under this section without the resident, to which
the application relates, being represented at a
hearing of the application unless the Tribunal is
satisfied that all reasonable efforts have been
made to notify the resident of the hearing.
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(5) The Tribunal may make any ancillary or
incidental orders that the Tribunal considers
appropriate.
(6) If the Tribunal orders that the resident be
allowed to resume occupation of the rented
property under the residential park agreement,
and is satisfied that there was no reasonable
basis for the giving of the notice to the resident
to leave under Division 3 of Part 4, the Tribunal
may make one or more of the following orders:
(a) an order excusing the resident from
paying rent while the resident was
excluded from entering or remaining in
the residential park;
(b) an order for compensation to be paid to
the resident by the park owner for rent
paid in respect of the period during
which the resident was excluded from
entering or remaining in the residential
park;
(c) an order for compensation to be paid to
the resident by the park owner for
reasonable expenses incurred by the
resident relating to either or both of the
following:
(i) the notice to leave given to the
resident by the park owner;
(ii) the period for which the resident
was excluded from entering or
remaining in the residential park.
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Division 3 – Appeals to Tribunal
102. Resident may appeal refusal to transfer agreement
(1) If a request by a resident, under section 18, to
transfer a residential park agreement is refused
by the relevant park owner, the resident may
apply to the Tribunal for an order –
(a) declaring that there are no reasonable
grounds for refusing the transfer of the
agreement to the person nominated by
the resident; and
(b) requiring the park owner to transfer the
agreement in accordance with the terms
of the order.
(2) If the Tribunal is satisfied that a residential park
agreement is to be transferred in accordance with
section 18, the Tribunal –
(a) is to make an order in accordance with
subsection (1); and
(b) may make such other orders as the
Tribunal considers appropriate.
103. Party to agreement may appeal termination notice
(1) If a person receives a notice under section 74 in
respect of a breach of a residential park
agreement, the person may apply to the Tribunal
for an order –
(a) declaring that –
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(i) the person is not in breach, or has
remedied the breach, of the
residential park agreement as
specified in the notice; and
(ii) the agreement is not liable to be
terminated under section 74; or
(b) reinstating the agreement.
(2) If the Tribunal is satisfied that a residential park
agreement has been validly terminated under
section 74, but that it is reasonable in the
circumstances to reinstate the agreement, the
Tribunal may make an order reinstating the
agreement on such conditions as the Tribunal
considers appropriate.
(3) If the Tribunal makes an order under
subsection (2) in respect of a residential park
agreement, the Tribunal may also make
alternative orders providing for reinstatement of
the agreement if specified conditions are
complied with but, if not, ordering the resident to
give up vacant possession of the rented property
to the park owner.
104. Party to agreement may appeal termination of
agreement
(1) If a party to a residential park agreement
terminates the agreement other than in
accordance with a notice under section 74, any
other party to the agreement may apply to the
Tribunal for an order reinstating the agreement.
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(2) On hearing an application under subsection (1),
the Tribunal may make an order –
(a) declaring that the residential park
agreement, that is the subject of the
application, has not been terminated; or
(b) declaring that the residential park
agreement, that is the subject of the
application, has been terminated.
(3) If the Tribunal is satisfied that a residential park
agreement, that is the subject of an application
under subsection (1), has been terminated but
that it is reasonable in the circumstances to
reinstate the agreement –
(a) the Tribunal may make an order
reinstating the agreement on such terms
and conditions as the Tribunal considers
appropriate; and
(b) if an order reinstating the agreement is
made under paragraph (a) and is subject
to conditions, may also make alternative
orders that, if the specified conditions are
not complied with –
(i) the resident is to give up vacant
possession of the rented property
to the park owner; or
(ii) other terms and conditions that
may apply to a party of an
agreement so reinstated are
waived.
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105. Party to agreement may appeal disbursement of
security deposit
(1) Within 7 days after a dispute under section 46 is
determined by the Commissioner under
section 47, a party to the dispute may apply to
the Tribunal against the determination of the
dispute.
(2) In determining an application under
subsection (1), the Tribunal is to hold a new
hearing in respect of the dispute.
(3) In deciding an appeal in respect of a dispute
under section 46, the Tribunal may –
(a) confirm the determination of the
Commissioner made under section 47 in
respect of the dispute; or
(b) vary the determination and specify how
the security deposit, paid in respect of the
residential park agreement to which the
dispute related, is to be disbursed to the
relevant park owner and resident.
(4) The Tribunal may make any ancillary or
incidental orders that the Tribunal considers
appropriate in respect of an application under
this section.
Division 4 – Repossession of rented property
106. Order for possession
(1) The Tribunal may, on application by the park
owner, if satisfied that a residential park
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agreement has terminated, make an order for
possession of the rented property.
(2) The order for possession takes effect on a date
specified by the Tribunal in the order, being a
date not more than 7 days after the date of the
order.
(3) However, if the Tribunal, although satisfied that
the park owner is entitled to an order for
possession of the rented property, is satisfied by
the resident that the grant of an order for
immediate possession of the rented property
would cause severe hardship for the resident, the
Tribunal may –
(a) suspend the operation of the order for
possession for up to 90 days; and
(b) extend the operation of the residential
park agreement until the park owner
obtains vacant possession of the rented
property from the resident.
(4) In extending the operation of the residential park
agreement, the Tribunal may make modifications
to the agreement that it considers appropriate
(but the modifications cannot reduce the
resident’s financial obligations under the
agreement except as may be appropriate for the
recovery by the resident of any compensation
payable to the resident).
(5) If the resident fails to comply with an order for
possession, the park owner is entitled to
compensation for any loss caused by that failure.
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(6) The Tribunal may, on application by the park
owner, order the resident to pay to the park
owner compensation to which the park owner is
entitled under subsection (5).
107. Abandonment of rented property
(1) The Tribunal may, on application by a park
owner –
(a) declare that a resident abandoned rented
property on a day stated in the
declaration; and
(b) make an order for immediate possession
of the rented property.
(2) In deciding whether a resident has abandoned
rented property, the Tribunal is to take into
account the following matters:
(a) whether rent payable under the
residential park agreement is unpaid;
(b) whether the dwelling is unoccupied and
neglected;
(c) whether the resident’s mail is being
collected;
(d) reports from neighbours, or other
persons, about the absence or
whereabouts of the resident;
(e) whether electricity or other services to
the rented property have been
disconnected or terminated;
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(f) whether the resident’s personal effects
have been removed from the rented
property;
(g) any other matters that the Tribunal
considers relevant.
(3) A resident is to be taken to have abandoned the
rented property on the day stated in a declaration
under this section.
(4) If a resident has abandoned rented property, the
park owner is entitled to compensation for any
loss (including loss of rent) caused by the
abandonment.
(5) However, the park owner must take reasonable
steps to mitigate any loss and is not entitled to
compensation for loss that could have been
avoided by those steps.
(6) The Tribunal may, on application by the park
owner, order the resident to pay to the park
owner compensation to which the park owner is
entitled under this section.
108. Repossession of rented property
A person must not enter rented property for the
purpose of taking possession of the rented
property before, or after, the end of a residential
park agreement unless –
(a) the resident abandons, or voluntarily
gives up possession of, the rented
property; or
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(b) the person is authorised to take
possession of the rented property under
the order of a court or the Tribunal.
Penalty: Fine not exceeding 200 penalty units.
109. Forfeiture of head tenancy not to end agreement
automatically
(1) A person may only take possession of rented
property and defeat the resident’s right to
possession under the residential park agreement,
if the person takes possession of the rented
property in accordance with an order for
possession made by a court or the Tribunal.
(2) A person may apply to a court or the Tribunal
for an order for possession of rental property if –
(a) proceedings are underway in the court or
Tribunal in respect of the rental property;
and
(b) in the opinion of the court or Tribunal,
the person is an interested person in
respect of those proceedings.
(3) On receipt of an application under subsection (2)
or on its own initiative, the court or the Tribunal
may order that –
(a) a residential park agreement vests in a
person who would, but for the
agreement, be entitled to possession of
the rented property; and
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(b) the person is taken, in accordance with
the terms and conditions of the
residential park agreement, to be the
resident in respect of the rented property.
(4) An order may be made under subsection (3) on
such terms and conditions as the court or
Tribunal considers reasonable in the
circumstances.
Division 5 – Enforcement of orders for possession
110. Enforcement of orders for possession
(1) If an order for possession of rented property (the
possession order) has been made by the
Tribunal, the person in whose favour the order
has been made may request that the Tribunal
make an order (the enforcement order) to
enforce the possession order.
(2) If a person has made a request for an
enforcement order under subsection (1), the
Tribunal must make an enforcement order if the
Tribunal is satisfied that the enforcement order is
reasonable in the circumstances.
(3) An enforcement order under subsection (1) –
(a) is to specify the person, or class of
persons, who may enforce the possession
order in respect of which the
enforcement order was made; and
(b) may specify, or empower, a person
referred to in paragraph (a) to take such
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actions as are specified in the
enforcement order.
(4) A person who is specified in an enforcement
order, as a person who may enforce a possession
order, must enforce the possession order as soon
as practicable after the person receives a copy of
the enforcement order.
(5) In enforcing a possession order in accordance
with subsection (4), a person, in addition to any
action specified in the relevant enforcement
order –
(a) may take one or more of the following
actions:
(i) enter the rented property to which
the possession order relates;
(ii) ask questions, if necessary for the
purpose of enforcing the
possession order;
(iii) take all steps as are reasonably
necessary for the purpose of
enforcing the possession order;
and
(b) may request the assistance of a police
officer to enforce the possession order;
and
(c) is responsible only for securing the
removal of persons from the rented
property and not the removal of real
property from the rented property.
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(6) A police officer must assist a person in enforcing
a possession order if the police officer –
(a) is satisfied that an enforcement order has
been made under this section in respect
of the possession order; and
(b) has been requested to enforce the
possession order by a person specified in
the enforcement order.
(7) A person must not hinder or obstruct a person
enforcing a possession order, in accordance with
this section and the relevant enforcement order.
Penalty: Fine not exceeding 200 penalty units.
(8) A person questioned under this section must not
refuse or fail to answer the question to the best
of the person’s knowledge, information and
belief, except where the answer to the question –
(a) might tend to incriminate the person or
make the person liable to a penalty or
other sanction; or
(b) would require the disclosure of
information that is privileged on the
ground of legal professional privilege.
Penalty: Fine not exceeding 200 penalty units.
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Division 6 – Retaliatory action by park owner
111. Retaliatory action by park owner
(1) This section applies to proceedings before the
Tribunal –
(a) on an application by a park owner for an
order for possession of rented property or
for both termination of a residential park
agreement and an order for possession of
the rented property; or
(b) on an application by a resident for relief
under this section following receipt of a
notice of termination (whether or not the
residential park agreement has
terminated by force of the notice).
(2) If the Tribunal is satisfied that the park owner
was wholly or partly motivated to make the
application or give the notice of termination (as
the case may be) by action of the resident to
complain to a government authority or secure or
enforce the resident’s rights as a resident, the
Tribunal may do either or both of the following:
(a) refuse the park owner’s application;
(b) make an order reinstating the residential
park agreement on such conditions, if
any, as the Tribunal considers
appropriate in the circumstances.
(3) If the resident alleges retaliatory action on the
part of the park owner and the Tribunal is
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satisfied that the resident had, within the
preceding 6 months, taken action to complain to
a government authority or secure or enforce the
resident’s rights as a resident, the onus is on the
park owner to prove that the park owner was not
wholly or partly motivated to make the
application, or give the notice of termination, by
the action of the resident.