Potaczek v Discovery Holiday Parks Pty Ltd [2015] NSWCATCD 129

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Potaczek v Discovery Holiday Parks Pty Ltd [2015] NSWCATCD 129 Hearing dates: 22 July 2015 Decision date: 06 November 2015 Jurisdiction: Consumer and Commercial Division Before: W Priestley, General Member Decision: The application is dismissed Catchwords: Quiet enjoyment Legislation Cited: Residential Parks Act 2010 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Residential (Land Lease) Communities Act 2013 (NSW) Category: Principal judgment Parties: Kazimierz Tadeusz Potaczek (applicant) Discovery Holiday Parks Pty Ltd (respondent) Representation: The applicant in person Cristina Cecere, and Simon Haliburton for the respondent File Number(s): RT 15/39088 Publication restriction: Unrestricted

REASONS FOR DECISION

The application 1. On 12 June 2015 the applicant lodged an application in the Tribunal, seeking orders under section 16 of the Residential Parks Act ("the Act") in respect of an alleged breach of his right to quiet enjoyment of his residential premises.

Procedural matters 1. The hearing took place on 22 July 2015. The applicant was present at the hearing, as was the respondent's park manager, Mr Simon Haliburton. The respondent's General Manager, Ms Cristina Cerece, appeared by telephone. 2. Due to problems with the telephone link, Ms Cerece was unable to hear some of the proceedings. Subsequently the respondent asked for an opportunity to obtain a copy of the sound recording, and to provide supplementary evidence and submissions. That application was granted, and orders were made about a timetable for that to occur, and for the applicant to have an opportunity to address any further evidence and submissions. There were delays in that process and the timetable was extended. The Tribunal received the supplementary material from the respondent on 25 September 2015. No further material was received from the applicant. 3. At the commencement of the hearing, the applicant was asked by the Tribunal if he was seeking an order that the Landlord restrain other tenants from breaching his peace, to which he replied "that's pretty well it". Later in the hearing the applicant was again asked what he wanted the Tribunal to do in relation to his complaints, and, as is pointed out in the respondent's submissions, he replied "I would like to be able to discuss with management problems and for them to carry out what I'm legally entitled to……….I'm just happy to live quietly and be able to discuss with the management any problems I have and come to an agreement or arrangement…..I just need to be able not to have the door slammed in my face and negotiation is much easier if we can talk it out and find some reason". 4. The respondent has submitted that in those circumstances, it is not necessary for the Tribunal to make a formal order to determine the matter. If that submission were accepted, the application should be dismissed. The Tribunal notes the application has not been withdrawn, and does not accept that submission. The correct course is to hear the matter on its merits. If it is found there has been a breach of the terms of the applicant's residential tenancy agreement, the parties could be invited to make submissions as to the appropriate order.