Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Morris v Terrigal Waters Village Pty Ltd [2014] NSWCATCD 164 Hearing dates: 17 July 2014 Decision date: 26 August 2014 Before: K Ross, General Member Decision: 1.The application is dismissed Catchwords: Residential Parks - principal place of residence Legislation Cited: Residential Parks Act 1998 Cases Cited: Vivian v Macquarie Shores Home Village Pty Limited & anor [2012] NSWDC (15 February 2012); Black v Chief Commissioner of State Revenue [2011] NSWADT 66 (1 April 2011) Category: Principal judgment Parties: Francis Morris (applicant) Terrigal Waters Village Pty Ltd (respondent) File Number(s): RP 14/25279 reasons for decision The Proceedings 1The proceedings were commenced by application filed with the Tribunal on 15 May 2014. The application was listed for conciliation and hearing on 30 May 2014. It could not be resolved through conciliation. It was adjourned for exchange of evidence and hearing and listed on 17 July 2014. At the conclusion of the hearing the Tribunal reserved its decision. 2The applicant seeks an order that he be recognised as a resident, and also seeks reimbursement of site fees paid. Jurisdiction 3The application is made under the Residential Parks Act 1998 ("the Act"). The Tribunal's jurisdiction under the Act is dependent upon a finding that the applicant is a resident. In previous proceedings RP 13/61511 in respect of the same site between the respondent and the applicant and his sister as executors of the estate of their late mother, the Tribunal held that it did not have jurisdiction under the Act to determine the application, being bound by the decision of the District Court in Vivian v Macquarie Shores Home Village Pty Limited [2012] NSWDC ("Vivian's case"). The Applicant's Evidence 4The applicant gave sworn evidence that since the decision was handed down by the Tribunal, he has moved in to live in the premises as his principal place of residence. He provided documents from his employer, the Electoral Commission and the RTA as evidence that he has changed his address with these places. He said that he has moved some furniture into the home. He has not had the gas connected, as he usually showers at work. He does not always stay at the home because he works away, and the depot is closer to his residence at Mariong, so he stays there for convenience. When questioned he said that he is separated from his wife, but expects to return to live with her when the home is sold. The house has been taken off the market, but he does want to sell. 5Under questioning, the applicant admitted that his motivation in moving into the property was to get around the decision in Vivian's case. He said that so far as he is concerned, the subject home is his principal place of residence. He acknowledged that he intended to return to live in his Mariong property, as soon as the home was sold. The Respondent's Evidence 6The respondent disputes the applicant's assertion that he is living in the home as his principal place of residence. The respondent says that he rarely sees the applicant, and that there was virtually no furniture in the home until after the respondent had provided its evidence in these proceedings. Very little water is being consumed. The respondent produced evidence that the documents which the respondent posted to the applicant were not delivered to the home, but were redirected to the applicant in Mariong. The gas is not connected to the premises. He pointed out that the applicant's wife and daughters remain living in the matrimonial home. He alleges that the applicant's claim to have moved in to the home is a ploy designed to mislead the respondent and the Tribunal. Findings and Decision 7The residential site agreement between the park owner and the applicant's parents contains clause 20 and 20A, providing as follows: 20. The park owner agrees: 20.1. that the resident may, with the prior consent of the park owner, assign the whole or part of the resident's interest under the agreement, or sublet the residential site; and 20.2. that the park owner may not unreasonably withhold or refuse consent to the assignment or subletting; and 20.3. that the park owner will not make any charge for giving such consent, otherwise than for the park owner's reasonable expenses in giving consent. 20A. The resident agrees that if the principal place of residence of the resident is elsewhere than the residential site, the park owner may withhold or refuse consent to the subletting at the absolute discretion of the park owner. 8It is common ground between the parties that, in addition to the contractual rights between the parties, the applicant will have a right to assignment of the agreement if the Residential Parks Act 1998 ("the Act") applies. In order for the Act to apply, the applicant would need to reside in the home as his principal place of residence. Accordingly, if the applicant can prove that the home is his principal place of residence, the respondent will be unable to withhold consent to an assignment of the site agreement. 9In Black v Chief Commissioner of State Revenue [2011] NSWADT 66 (1 April 2011), the NSWADT ("Black's case") discussed previous cases relating to the definition of "principal place of residence" in land tax and first home owners grant applications. The discussion concludes that: (i)The words should be given their ordinary meaning in the context in which they appear. (ii)The consideration as to whether the person has been occupying premises as their principal place of residence is to be assessed objectively, in light of the circumstances relating to the actual occupation of the premises. (iii)The intention of the person is relevant but not determinative of the issue. (iv)"to occupy a home as his principal place of residence must have a degree of permanence to it; a connection to a place of residence of a transient, temporary, contingent or passing nature is not sufficient, nor is occupation for some other purpose" (v)The length of stay is not determinative, as a short stay may have a degree of permanence about it (vi)The reasons for departure from the home must be both reasonable and adequately explained when considered objectively. 10Whilst this case dealt with the definition in the context of different legislation, it is useful in considering the definition in the Act. In addition, the Tribunal notes the dictionary definition of "principal": "first or highest in rank, importance value etc, chief, foremost" (The Macquarie Online Dictionary as quoted in Black's case). 11The Tribunal is not satisfied, applying these tests, that the home at Terrigal Waters Village is in fact the applicant's principal place of residence. It is not his foremost place of residence. It is a place to which he comes in order to qualify for the right to assign the agreement. It is a place which he intends to sell. His connection to it has no sense of permanence. His primary home remains his home in Mariong, where his family and the majority of his possessions remain. That is the place where he most often stays, and it is the place to which he intends to return. 12In these circumstances, the Tribunal is not satisfied that the applicant can insist upon an assignment of the site agreement. 13In its submission, the respondent seeks to have the Tribunal order the applicant to remove the home from the site. However, the Tribunal has no formal application from the respondent. The respondent will need to follow the processes in the Act, and file an appropriate application seeking the appropriate orders. Orders 14Accordingly, the application is dismissed. K Ross General Member Civil and Administrative Tribunal of New South Wales 2 September 2014 ********** 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: 24 October 2014