Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hacienda Caravan Park Pty Ltd v Denley [2016] NSWCATAP 23 Hearing dates: 24 August 2015 Date of orders: 28 January 2016 Decision date: 28 January 2016 Jurisdiction: Appeal Panel Before: M Harrowell, Principal Member J Wakefield, Senior Member Decision: (1) By consent, the Appeal Panel made the following orders: (a) The time to appeal is extended up until 17 November 2014 for each of those appeals in Annexure A marked "Extended"; (b) Leave is granted to the appellant to amend the Notice of Appeal for each of those appeals in Annexure A marked "Amended" in accordance with the document dated 17 April 2015 found at tab 1 of the Bundle of Documents tendered on appeal; (c) Orders 1(a) and (b) take effect on 24 August 2015. (2) In respect of each of those appeals listed in Annexure A marked "Allowed", the appeal is allowed; (3) In each appeal to which order 3 applies, the Appeal Panel makes the following orders: (a) The decision made 5 September 2014 is quashed; (b) The orders made 5 September 2014 are set aside; (c) The application is remitted for rehearing in accordance with these reasons and according to law by a differently constituted Tribunal; (d) the application is to be listed for directions in the Consumer and Commercial Division for the purpose of facilitating the rehearing; and (e) the parties may adduce further evidence. (4) In respect of the appeals marked "Allowed" in Schedule A, each party is to pay their own costs. Catchwords: Residential Parks Act- residential tenancy agreement, jurisdiction to determine rent dispute Reasons- Adequacy of reasons Legislation Cited: Civil and Administrative Tribunal Act, 2013 Civil and Administrative Tribunal Rules, 2014 Holiday Parks (Long-term Casual Occupation) Act, 2002 Residential Parks Act, 1998 Cases Cited: Australian Broadcasting Tribunal v Bond 170 CLR 321 Bruce v Cole (1989) 45 NSWLR 163 Collins v Urban [2014] NSWCATAP 17 Gennacker Pty Ltd v Bennett [2015] NSWSC 726 Gennacker Pty Ltd v Bennett [2016] NSWCATAP 10 Hacienda Caravan Park Pty Ltd v Howarde [2016] NSWCATAP 1 Hannah and others v Hacienda Holiday Park (Residential Parks) [2012] NSWCTTT 285 Henderson v Henderson (1843) 3 Hare, 67 Kirk v Industrial Relations Commission of NSW (2010) 239 CLR 531 Marks v National and General Insurance (1993) 114 FLR 416 Pettitt v Dunkley [1971] NSWLR 376 Port of Melbourne Authority v Anshun Pty Ltd (1980) 147 CLR 589 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 Torrisi v Oliver [1951] VLR 380 Texts Cited: Nil Category: Principal judgment Parties: Hacienda Pty Ltd (appellant) Denley and Ors (respondents) - see Annexure A Representation: Mr M Gunning, Counsel (appellant) M McMahon, Counsel (respondents) Solicitors: KL Legal, Solicitors (appellant) P Smyth, Tenants Union of New South Wales File Number(s): See Annexure A Publication restriction: Unrestricted Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Citation: [2014] NSWCATCD 169 Date of Decision: 05 September 2014 Before: J McMillan, General Member File Number(s): See Annexure A reasons for decision 1. These reasons relate to multiple appeals arising from a decision of the Tribunal made on 5 September 2014 (Decision). 2. In all appeals, the appellant is Hacienda Caravan Park Pty Ltd which is the owner and operator of a holiday park located at Chinderah in Northern New South Wales (Park). 3. The respondents to the appeals and the relevant appeal proceedings numbers for each respondent are set out in Annexure A to these reasons. The respondents occupy various sites at the Park, details of which are also recorded in Annexure A 4. The proceedings to which the appeals relate concern an application by each of the respondents in the present appeals who sought orders under the Residential Parks Act, 1998 (RP Act) against the appellant. The respondents claimed; 1. they were all tenants under separate residential tenancy agreements to which the RP Act applies; and 2. the current rent was excessive (and/or that a proposed rent increase was excessive (ss 55 and 56 of the RP Act)); 1. The claims included that there was a withdrawl or reduction of services: see Decision [2(ii)]. It is unclear from the reasons what services were alleged to have been withdrawn or reduced although it would seem from the transcript and Decision that the issues raised may have related to the failure of the appellant to maintain the common areas of the Park: see transcript of original hearing- line 6 at Bundle p30 and Decision at [35]. Tribunal proceedings 1. The original proceedings were heard by the Tribunal on 25 June 2014. 2. At that time, Ms Urquhart appeared for the respondents (who were the applicants before the Tribunal) and Ms Hickling, an employee of the appellant (the respondent in those proceedings), appeared for the appellant. 3. It is evident from the Decision at [30] that the Tribunal was required to consider two forms of agreement which the various site occupants had with the appellant. These agreements were described as: 1. Residential Tenancy Agreement for landlords and tenants of Movable Dwelling or Movable Dwelling Sites (Residential Tenancy Agreement); and 2. Occupation Agreement Schedule 1 & 2 (Occupation Agreement). 1. In relation to those occupants who had a Residential Tenancy Agreement with the appellant, it appears common ground in the original proceedings that these agreements were made under and regulated by the Residential Parks Act, 1998 (RP Act). 2. However, in relation to those parties who had signed an Occupation Agreement, the appellant says it contended before the Tribunal that each of those parties had agreements to which the Holiday Parks (Long-term Casual Occupation) Act 2002 (HP Act) applies. Therefore the appellant said that the Tribunal had no jurisdiction to determine a rent increase dispute under the RP Act. 3. It seems that the Tribunal found that those parties who had Occupation Agreements had their principal place of residence at the Park. Therefore, the Tribunal concluded that those applicants also had agreements to which the RP Act applied. 4. The respondents in these appeals are those applicants in the original proceedings which the appellant alleges have occupation agreements to which the HP Act applies. However, as recorded in Annexure A to these reasons under the heading "Occupation Agreement & Date of Agreement", the appellant did not provide to the Appeal Panel written agreements for all of the respondents. Those respondents for which no written Occupation Agreement was provided on appeal are Brian Hamilton, (AP 14/54619), Percy and Gail Hannah (AP14/54634) and Ian Hindle (AP 14/55710). These respondents have the words "Not in Bundle" recorded against their names in Annexure A. Notices of appeal and replies to appeal 1. The documents relevant to this appeal are found in the Bundle of Documents (Bundle) filed by the parties pursuant to directions made by the Appeal Panel on 27 March 2015. However, the Bundle does not include the Notices of Appeal, which were provided to the Appeal Panel in a separate bundle. This separate bundle included Replies to Appeal filed by some of the respondents. 2. In relation to the Bundle, it is apparent from the submissions filed that there is some dispute about whether particular documents were in evidence before the Tribunal at first instance. It is also evident from a review of the documents that some of the statements which have been provided were prepared after the original hearing. To the extent necessary, these matters will be dealt with below. 3. The Notices of Appeal were amended by leave at the hearing of the appeals on 24 August 2015. The circumstances in which this occurred are set out below. 4. For present purposes, it is sufficient to summarise the grounds finally relied upon by the appellant. These were: 1. that the Tribunal was in error in finding that: 1. the principal place of residence of each of the respondents was at the Park and therefore each respondent had an agreement regulated by the RP Act 2. the appellant had dealt with each respondent under the provisions of the RP Act; 1. that the reasons given by the Tribunal were inadequate in that the Tribunal: 1. failed to identify the evidence supporting this finding; and 2. failed to give reasons to support this finding; and 1. that the Tribunal erred in law in that it reversed the onus of proof which was upon the respondents to show that they had agreements to which the RP Act applied. In this regard the appellant points to the Decision at [32] where the Tribunal said the "park owner did not tender any evidence that showed the residence under an occupation agreement did not occupy those premises other than as their principal place of residence". 1. Insofar as these grounds did not raise questions of law, the appellant sought leave to appeal. 2. The appellant also filed a document entitled "Statement of Issues" found at tab 2 of the Bundle which seeks to provide further detail to these matters. 3. In each case, the appellant asked for orders that the appeal be allowed and the original application by the respondent be dismissed. 4. It appears that not all respondents filed a Reply to Appeal. However from the reply filed in the case of Ms Riley dated 16 January 2015 (AP 14/55660) and from the submissions filed for all respondents who appeared at the hearing of the appeal, the following matters were raised in response to the appellant's grounds of appeal: 1. the principal place of residence of each respondent was at the Park; 2. each respondent had been recognised and should continue to be recognised as a resident under the RP Act; 3. there were earlier proceedings between some of the respondents in which decisions had been made to the effect that each respondent was a resident and had an agreement to which the RP Act applied. The decisions were identified as: 1. Hannah & Ors v Hacienda Holiday Park (Residential Parks) [2012] NSWCTTT 285; and 2. Dodge, Clarke &Ors v Hacienda Holiday Park Pty Ltd (Residential Parks) [2013] NSWCTTT 626, and the respondents provided a schedule to their submissions dated 16 June 2015 (Bundle tab 19) setting out which respondents were parties to each of those proceedings; 1. the jurisdictional issue was not a matter raised at the original hearing of the applications to which the present appeal relates; 2. the appellant is now estopped from now raising the issue of jurisdiction Hearing of the appeal 1. The appeals were heard on 24 August 2015, the hearing having been adjourned from 27 March 2015. 2. At the hearing of the appeals, the appellant was represented by Mr Gunning of Counsel instructed by KL Legal. Most of the respondents were represented by Ms McMahon of Counsel, instructed by Mr Smyth of the Tenant's Union of New South Wales. The Appeal Panel had made orders granting leave for each of the parties to be represented. 3. At the commencement of the hearing several preliminary matters were dealt with by the Appeal Panel. 4. Firstly, the Appeal Panel was made aware that two respondents were not represented by Ms McMahon and did not appear. These respondents were Mr Keith Smith in appeal AP 14/54651 and Ms Jacqueline Furlonger in appeal AP 14/55700. In respect of these appeals the Appeal Panel was advised that the Tenant's Union of New South Wales did not have instructions to represent these parties and it appeared that they had not been separately served with the documents to be relied upon at the appeal. 5. Consequently, these appeals were adjourned for hearing at a later date and directions were made for the service of the bundle of documents upon the respondents and for the respondents to file and serve any documents and submissions in reply. 6. Secondly, the appellant sought an extension of time in which to lodge the appeals. 7. The reason for the extension of time request arose from the way in which applications had been made and managed at first instance and on appeal. Because these types of applications usually involve one issue which affects multiple sites in a park (in this case a claim that a proposed rent increase is excessive) each site occupier must file an application to challenge the rent increase applicable to their site. However one of the applications at first instance is then designated the "master file" and notices and orders are issued using the master file reference. In the present case the "master file" was in application RP 14/10678 brought by Mr Peter Morgan in the Tribunal, hence the reference to "Morgan & Ors" in the Decision. 8. When the appellant sought to appeal the Decision, appeal proceedings AP 14/48732, Hacienda Caravan Park Pty Ltd v Morgan & Ors, were filed on 3 October 2014 (Morgan Appeal). This appeal was not filed within time. Because the proceedings were "residential proceedings" any appeal was required to be filed within 14 days from the date the appellant received the Decision on 12 September 2014: see Rule 25(4)(b) and the definition of residential proceedings in Rule 3 of the Civil and Administrative Tribunal Rules, 2014 (Rules). 9. It became unnecessary to determine whether time to file this appeal should be extended. This is because, by consent, the appeal in respect of Mr Morgan's application, AP 14/48732 was dismissed by the Appeal Panel on 27 March 2015. 10. However because the appellant did not file with the Morgan Appeal separate Notices of Appeal in respect of each of the other original applications, there was need for Notices of Appeal to be filed in respect of each of the other applications. 11. When the issue of the need for separate Notices of Appeal for each of the other original applications was drawn to the attention of the appellant by the Registry, the appellant filed appeals in respect of each such application. These appeals were lodged 16 October 2014. 12. It is in respect of these appeals that applications to extend time had been made. 13. Thirdly, the appellant sought leave to amend the notices of appeal. 14. In relation to the applications for leave to extend the time for filing the notices of appeals and the applications to amend the notices of appeal, these applications were heard as part of the substantive hearing on 24 August 2015. At this hearing the appellant tendered an affidavit of Ms Hickling sworn 24 April 2015. Ms Hickling was not cross-examined however each of the parties made submissions concerning the extension of time. 15. At the conclusion of submissions the respondents provided their consent to time being extended and to leave being granted to amend the notices of appeal. 16. Consequently, on 24 August 2015 the Appeal Panel made orders extending the time in which to appeal and granted leave to the appellant to amend the Notices of Appeal in accordance with the document dated 17 April 2015 found at tab 1 of the Bundle. As these orders have not been formerly published, they have been recorded in the final orders made in consequence of these reasons. Submissions on substantive issues 1. Each of the parties made oral and written submissions. Appellant's submissions 1. The appellant contends that the jurisdiction of the Tribunal under the RP Act only arises where there is a residential tenancy agreement as defined by s 3 of the RP Act and the provisions of s5(1) of the RP Act are satisfied. 2. The appellant says that the "evidence before the Tribunal demonstrates that in a number of instances there were occupation agreements in place with a number of the Respondents, rather than residential tenancy agreements (as defined in section 3"of the RP Act. In this regard the Bundle included copies of documents entitled "Occupation Agreement". Annexure A records those respondents whose name is recorded on such an agreement and the date of that agreement under the heading "Occupation Agreement & Date of Agreement". 3. However as noted above, there are no Occupation Agreements in the Bundle for those respondents beside whose name the words "Not in Bundle" appears in Annexure A. 4. The appellant submitted that the Occupation Agreements were made under the HP Act and therefore those respondents who have such agreements had no entitlement to bring any application under the RP Act because the RP Act does not apply to agreements to which the HP Act applies. The appellant referred to s6A of the RP Act and s7 of the HP Act. 5. The appellant submitted that the Tribunal failed to consider the terms of each of the respondent's agreements, make appropriate findings and/or give reasons sufficient to establish there were residential tenancy agreements to which the RP Act applied. 6. Further, the appellant says that a park owner must give approval for a person to occupy a site as their principal place of residence. Otherwise the requirements of s5(1)(c) of the RP Act will not be satisfied, in which case the RP Act will not apply to the particular agreement. The appellant says that there was no evidence to support a conclusion that such approval had been given and no basis otherwise existed to infer such approval. In any event, the appellant submitted that the Decision did not identify the evidence relied upon in making such a finding and/or said that the Tribunal failed to give adequate reasons. 7. Lastly, the appellant submitted that: 1. the findings that each of the respondents occupied the premises as their principal place of residence was inappropriately treated by the Tribunal "as an admission or acceptance by the Appellant" that agreements had been made under the RP Act; 2. the conclusion that the appellant had "dealt with them (the residents) under the provisions of the (RP) Act", was not supported by any evidence; and 3. reasons given in reaching these views were inadequate. 1. In developing these submissions in oral argument, the appellant referred the Appeal Panel to the terms of the Occupation Agreements, in particular clause 45 which limits occupation in a manner consistent with the requirements of the HP Act. The appellant also submitted that the terms of the Occupation Agreement were inconsistent with approval having been given to the particular respondents to occupy their relevant sites as their principal place of residence. 2. On the point of no evidence, the appellant relied on the decisions in Australian Broadcasting Tribunal v Bond 170 CLR 321 at 356 and Bruce v Cole (1989) 45 NSWLR 163 at 188. On the point of inadequate reasons, the appellant relied on the decisions in Pettitt v Dunkley [1971] NSWLR 376 and Kirk v Industrial Relations Commission of NSW (2010) 239 CLR 531 at [78] to [90]. 3. Finally, the appellant submitted that the effect of the Tribunal's Decision was to reverse the onus of proof, for example by suggesting that it was necessary for the appellant to prove a particular respondent who had signed an Occupation Agreement did not occupy the respective premises other than as a principal place of residence. 4. Consequently, the appellant submits that the findings and orders of the Tribunal made on 5 September 2015 should be quashed or set aside. 5. In making this submission, the appellant also seeks costs of the appeal Respondents' submissions 1. In written submissions, the respondents say that the transcript shows the only issue raised by the appellant in connection with jurisdiction at the original hearing before the Tribunal concerned a Mr John Hodson, whose application was dismissed: see transcript line 6, Bundle tab 3 p28. The order for dismissal was apparently on the basis that Mr Hodson had an Occupation Agreement to which the HP Act applied. 2. The respondents then say that the Member said (at transcript Bundle p27) : … but it would seem to me that everybody else's agreement is not on this sort of a form, is it? 1. The respondents point to the fact that no submission was made by the appellant at this time to the effect that other respondents also had Occupation Agreements to which the HP Act applied and not the RP Act. Consequently, the respondents submit that the appellant is estopped from asserting otherwise. The respondents rely on a passage from the decision of Henderson v Henderson (1843) 3 Hare at p115, 67 ER at p319, approved by the High Court in Port of Melbourne Authority v Anshun Pty Ltd [1980-1981] 147 CLR 589 at 598. 2. Next, the respondents contend that a res judicata or issue estoppel arises by reason of the earlier decisions of the Consumer Trader and Tenancy Tribunal (CTTT) of Hannah and Dodge. 3. Finally, the respondents submitted that the appellant is otherwise estopped from denying the agreement it has with each respondent is a residential tenancy agreement regulated by the RP Act. The respondents refer to the principles of estoppel by convention and promissory estoppel. 4. In making these submissions, Counsel for the respondents acknowledged at the hearing that it was still necessary for the Tribunal to satisfy itself it had jurisdiction to hear and determine the original applications. 5. Finally, in written submissions filed by the respondents with leave following the conclusion of the hearing, the respondent submitted that if the Appeal Panel did not conclude that the earlier proceedings gave rise to an Anshun estoppel, the matter should in those circumstances be remitted for further hearing. Appellant's submissions in reply 1. The appellant's submissions in reply can be set out briefly. 2. Firstly, the appellant says the principle in Anshun has no relevance to a challenge on appeal. Rather, a so-called Anshun estoppel arises in the event that separate and subsequent proceedings are brought between the same parties raising matters which could have been brought in the original proceedings. 3. Secondly, the appellant says that insofar as the matter of jurisdiction was not raised as an issue before the Tribunal, leave should be granted to do so in any event, that the relevant evidence is before the Appeal Panel and the Tribunal has made significant errors of law. 4. Thirdly, the appellant says that res judicata and issue estoppel cannot succeed "unless the Tribunal or court has jurisdiction to give a binding decision on the matter upon which it is said that the decision operates as an estoppel". The appellant relies on the decisions in Torrisi v Oliver [1951] VLR 380 and Marks v National & General Insurance (1993) 114 FLR 416 and says that unless the written Occupation Agreements were varied, the Tribunal could have no jurisdiction and therefore a plea of res judicata or issue estoppel could not arise. Further, if the jurisdictional requirements of s5 are not met, the Tribunal will fall into error. 5. Fourthly, the appellant says the earlier decisions of Hannah and Dodge were not put in evidence before the Tribunal and therefore the respondents should not now be permitted to rely on those decisions to support any claim in relation to Anshun estoppel. In any event, the appellant says that those reasons are themselves inadequate in that they do not identify the particular findings made nor the parties to which those findings apply. 6. Lastly in relation to the issue of estoppel by convention or other estoppel preventing the appellant from denying there are agreements with the respondents to which the RP Act applies, again the appellant says evidence of these matters was not adduced before the Tribunal and it is apparent from the Decision that such matters were not raised, let alone considered. 7. A final matter to note is that the appellant filed further submissions in reply dated 28 August 2015 following conclusion of the hearing. Those submissions repeated some of the submissions earlier made. However, at [9], the appellant objects to "further or fresh evidence" found in the Bundle. In this regard the appellant submits that the document at Tab is 10-15 are irrelevant to a determination of the jurisdictional issue that arises under s5(1) of the RP Act. In relation to the documents at tab 16-19, the appellant also submits these are irrelevant being information relating to the circumstances "surrounding the signing of the occupation agreements, rather than to events post the signing of the occupation agreements that might otherwise be relied upon to demonstrate a conventional estoppel/variation of those agreements/res judicata". 8. The appellant says this evidence should not be allowed on appeal. 9. The appellant therefore says the Decision should be quashed and the original applications dismissed. If not, the appellant says the proceedings should be remitted for reconsideration by the Tribunal. Consideration 1. These appeals relate to proceedings originally commenced by the respondents under ss 55 and 56 of the RP Act seeking orders in respect of rent increases (Rent Disputes). 2. The appellant seeks to appeal on questions of law. Leave is not required: see s 80(2)(b) of the NCAT Act. The appellant also seeks leave in so far as the issues raised are not questions of law. The applicable principles to the grant of leave are set out in Collins v Urban [2014] NSWCATAP 17. 3. The appellant challenges the Decision on the basis that the Tribunal incorrectly determined it had jurisdiction to hear the Rent Disputes and determine those disputes under the RP Act. The appellant says the respondents had entered occupation agreements with it to which the HP Act applies 4. Four issues arise for determination: 1. Is the appellant entitled to raise the issue of jurisdiction on appeal; 2. If yes, were the Tribunal's reasons recorded in the Decision adequate in determining the issue of jurisdiction and was the decision on jurisdiction otherwise correct; 3. Did the respondents have residential tenancy agreements to which the RP Act applies; and 4. If not, is the appellant estopped from denying there were residential tenancy agreements. 1. A determination of these issues first requires a consideration of the circumstances in which the RP Act applies. The RP Act and its application 1. As indicated above, the Rent Dispute applications were brought by the respondents pursuant ss55 and 56 of the RP Act. These sections provide: 55 Resident may apply for an order that a rent increase is excessive A resident under a residential tenancy agreement may apply to the Tribunal for an order declaring that a rent increase is excessive not later than 30 days: (a) after being given notice of the rent increase, or (b) after being given notice of a rent increase payable under a proposed residential tenancy agreement for residential premises already occupied by the resident. 56 Resident may apply for an order that rent is excessive (1) A resident under a residential tenancy agreement may, at any time, apply to the Tribunal for an order declaring that the rent payable under a residential tenancy agreement or a proposed residential tenancy agreement for residential premises already occupied by the resident is excessive, having regard to the reduction or withdrawal by the park owner of any goods, services or facilities provided with the premises. 1. These sections require that the claimant be a resident under a residential tenancy agreement within the meaning of the RP Act. 2. Section 3 of the RP Act defines a residential tenancy agreement in the following terms: residential tenancy agreement means any agreement under which a person grants to another person for value a right of occupation of residential premises for the purpose of use as a residence: (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, and includes such an agreement granting the right to occupy residential premises together with the letting of goods. 1. Section 5 of the RP Act sets out the residential tenancy agreements to which the RP act applies. Section 5 provides: 5 Application of Act (1) This Act applies to residential tenancy agreements under which: (a) the residential premises consist of a residential site, or a moveable dwelling on a residential site, and (b) the resident occupies the residential premises as the resident's principal place of residence, and (c) in the case of an agreement entered into after the commencement of this section, the resident has the approval of the park owner or park manager to occupy the premises as the resident's principal place of residence. (1A) A person does not cease to occupy residential premises as the person's principal place of residence by reason only that the person is absent from the premises for the purpose of receiving medical, nursing or domestic care. (2) This Act applies whether the relevant residential tenancy agreement was entered into before or after the commencement of this section, unless a particular provision provides otherwise. (3) Where this Act applies to a residential tenancy agreement, it so applies despite the terms of any such residential tenancy agreement or any other contract, agreement or arrangement, whether made before or after the commencement of this section." 1. However, s6A provides that the RP Act does not apply to an agreement or site to which the HP Act applies. Section 6A says: 6A Act does not apply to long-term casual occupation (1) This Act does not apply to an agreement or to a site to which the Holiday Parks (Long-term Casual Occupation) Act 2002 applies. (2) However: (a) park rules can be made under Part 6 of this Act in relation to a residential park that contains sites occupied under occupation agreements to which the Holiday Parks (Long-term Casual Occupation) Act 2002 applies, and (b) park rules made under Part 6 of this Act apply to an occupation agreement or to a site to which the Holiday Parks (Long-term Casual Occupation) Act 2002 applies, to the extent provided by that Act. 1. The operation of the RP Act and its application to agreements to occupy the sites at a park was considered by the Appeal Panel in Gennacker Pty Ltd v Bennett [2016] NSWCATAP 10. That case also considered the decision of Hidden J in Gennacker Pty Ltd v Bennett [2015] NSWSC 726. 2. In Gennacker at [99]-[101] the Appeal Panel said: 99 As is evident from the above legislation, an agreement to which the RP Act applies is one where: (1) There is a residential site or moveable dwelling on a residential site; (2) The resident occupies the residential site as the resident's principal place of residence; and (3) In the case of an agreement entered into after commencement of the section, the resident has the approval of the park owner or park manager to occupy the premises as the resident's principal place of residence. 100 However, the RP Act does not apply to an agreement to which the Holiday Parks Act applies. 101 On the other hand, the Holiday Parks Act applies to an agreement in relation to a site: (1) Entered into by an occupant who has a principal place of residence somewhere other than the site; (2) Under which the occupant installs the occupant's own moveable dwelling on the site and leaves it there all the time that the Occupation Agreement continues in force; (3) Under which the occupant can occupy the site for no more than 180 days in any twelve month period (in a continuous or broken period); and (4) Under which: (a) The occupant agrees with the consent of the park owner, to be an occupant on a casual basis for at least 12 months; or (b) The occupant has with the consent of the park owner, been an occupant on a casual basis for at least 12 months. 1. The Appeal Panel in Gennacker also concluded that the fact a resident has their principal place of residence at the park was necessary but not sufficient to establish that their right of occupation is regulated by the RP Act. The resident must also establish that they have the "approval of the park owner" to occupy the premises as the resident's principal place of residence as required by s5(1)(c) of the RP Act: Gennacker at [138]-[140]. 2. Further, for each of the RP Act and HP Act to apply there must be an agreement: see Hacienda Caravan Park Pty Ltd v Howarde [2016] NSWCATAP 1 3. The agreement between the park owner and the resident or occupant as the case may be must be in writing but the absence of writing or the fact an agreement is only partly in writing does not render such an agreement void and unenforceable: see s16A of the RP Act and s15 of the HP Act respectively. 4. Therefore, to the extent necessary in each case, the Tribunal must determine whether or not the agreement is in writing and the terms of the agreement and whether or not it is a residential tenancy agreement within the meaning of the RP Act. 5. Insofar as there is a written or other agreement to which the HP Act applies, the Tribunal may also be required to decide whether that agreement has been subsequently varied to or replaced by a residential tenancy agreement to which the RP Act applies. Such a variation may be in writing, oral or it might be inferred: see Gennacker at [147] and following. 6. Lastly, in so far as a tribunal or court has previously determined the terms of the agreement between the parties or the obligations arising under such agreement, such a determination may give rise to a res judicata or an issue estoppel: see Gennacker at [165]-[169]. 7. It is in this context that the present appeals must be determined. Is the appellant entitled to raise the issue of jurisdiction on appeal? 1. The first issue to consider is whether the appellant is prevented from raising the jurisdictional issue having regard to what happened at the original hearing before the Tribunal. 2. The respondents submitted that the appellant failed to raise the issue of jurisdiction other than in relation to the application of Mr Hodson which was dismissed. Therefore, the respondents submitted that the appellant could not now raise that issue on appeal. Reliance was placed on the transcript of the original hearing. 3. The respondents relied upon Anshun in support of the proposition that a matter not raised at the original hearing cannot thereafter be raised on appeal. 4. Leaving aside whether or not such an estoppel could in any event arise, in our view the principle in Anschun (and Henderson) has no application to a party exercising a right on appeal. Rather, the principles in Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 are relevant to determine if a matter not raised at an original hearing can nonetheless be raised on appeal. 5. In relation to what occurred at the original hearing, it is necessary to set out in more detail the oral submissions in connection with the application made by Mr Hodson to which the respondents referred in their submissions. In this regard it should be noted that Mr Wilmott and Ms Hickling were making submissions on behalf of the appellant and Ms Urquhart was making submissions on behalf of the respondents. An exchange took place in connection with Mr Hodson's agreement in the following terms: Member: No, but it has to be their principal place of residence, doesn't it? Hickling: That's a short term site and its… Member: You're saying it's a short term site? Hickling: Yes. Member: It's under the holidays… Wilmott: The agreement… Member:: … Act Wilmott: … goes along the occupation Act. Member: Right, it's not under the… Wilmott: Residential Parks Act. Member: … Residential Parks Act, and that's why I asked for a copy of the agreement; I haven't looked at it but … Wilmott: No. Hickling: I believe he lives in Surfers Paradise. Member: Sorry? Hickling: I believe Mr Hodson lives in Surfers Paradise. That's where he's rent increase notice was sent to, his address in Surfers Paradise. Member: So it's under the (Long-term Casual Occupation) Act; that's the agreement you've reached. Do you have anything to say, Ms Urquart? Urquart: No. It looks like there's been some (indistinct). Member: No, but it would seem to me that everybody else's agreement is not on this sort of a form, is it? (Emphasis added) Urquart: I haven't seen it. Member: You haven't seen it? Does it have that attached to it? Urquart: That's the holiday? Member: That doesn't say-yes, it doesn't say Residential Parks Act, does it? Urquart: No 1. At this point we should note that it appears from this exchange that: 1. the Member had not seen all of the agreements, because he asked Ms Urquhart whether "everybody else's agreement" is in the same form; and/or 2. the other agreements were either not in evidence or had not been the subject of consideration by the Tribunal or the parties representatives at that time. 1. Be that as it may, on appeal the respondents criticise the appellant for not raising the general issue of jurisdiction during the exchange. We do not accept this criticism for two reasons. Firstly, there was clearly a discussion about jurisdiction which included the question of the form of agreement an applicant (in that case Mr Hodson) had with the appellant. This exchange indicates that the Tribunal understood there was a need to consider the form of the agreement in order to determine a jurisdictional issue. Secondly, it is hardly surprising that the appellant's representatives did not interrupt the exchange taking place between the Tribunal and Ms Urquhart which was focused on whether or not Mr Hodson's application should be dismissed. However, the issue was sufficiently identified and was an issue relevant to all the other respondents (applicants before the Tribunal) 2. Further, even if this exchange was not sufficient to raise the issue of jurisdiction at that time, we are satisfied the issue was in fact raised by the appellant in respect to all the respondents. This is because at [30] of the Decision the Tribunal says in relation to the residents with Occupation Agreements: The park owner claims that the residents who have signed the latter of these is not under the Act 1. Consequently, the present appeals are not circumstances in which a litigant seeks to raise on appeal an issue which was not raised before the Tribunal and the respondents' challenge to the appeal on this basis fails. Were the Tribunal's reasons recorded in the Decision adequate in determining the issue of jurisdiction and was the decision on jurisdiction otherwise correct? 1. As indicated above, the Tribunal was obliged to satisfy itself that it had jurisdiction to determine any claim. 2. This required the Tribunal to: 1. make findings of fact and law relevant to any jurisdictional issue; and 2. identify relevant evidence and provide adequate reasons in connection with such determination. 1. In the present cases, in order to make orders in relation the Rent Disputes the Tribunal needed determine in respect of each of the respondents (applicants before the Tribunal) that each respondent had a residential tenancy agreement to which the RP Act applied. 2. As indicated above, it was necessary for the Tribunal to be satisfied that the requirements of s5 of the RP Act had been met. Inter alia, the Tribunal was required to determine: 1. whether there was an agreement between the appellant and each of the respondents; 2. the terms of that agreement; 3. whether or not the respondent occupied the residential premises as their principal place of residence; and 4. whether or not the respondent had the approval of the park owner or park manager to occupy the premises as the respondent's principal place of residence. 1. It seems clear the Tribunal had before it two forms of written agreement. The Tribunal records at [30] of the Decision: The park owner tendered a copy of the agreements for 42 sites in the park. there were two types of forms. One in the form titled "Residential Tenancy Agreement for landlords and tenants of Movable Dwellings or Movable Dwelling Sites" and the other is titled "Occupation Agreement Schedule 1 & 2". The park owner claims that the residents who have signed the latter of these is not under the Act. It is noted that in matter No 13/48721 the Tribunal made orders for rent increases for 20 of the sites. 1. It is unclear which party (applicant or respondent at first instance) provided the written Occupation Agreements to which the Tribunal referred. However no suggestion was made in the appeal that the Occupation Agreements identified in the Bundle for the particular respondents did not form part of the evidence to which the Tribunal was referring at [30]. Consequently, we would infer that the Tribunal in fact had before it the Occupation Agreements which have been included in the Bundle for each of the respondents we have identified in Annexure A. 2. Further, in so far as the Bundle does not include any form of written agreement for Brian Hamilton, (AP 14/54619), Percy and Gail Hannah (AP14/54634) and Ian Hindle (AP 14/55710) we can only conclude that the Tribunal had no evidence of the agreements for each of these respondents. While there are statements for Mr Hamilton (Bundle tab 15) and Mr Hindle (Bundle tab 12), these are dated in 2015, after the original hearing and after the appeals were filed and were clearly not evidence in the proceedings at first instance. 3. As to the Hannahs, neither the appellant or the respondents pointed to any document in the Bundle recording their agreement. 4. Consequently, it will be necessary to deal with the position of Brian Hamilton, (AP 14/54619), Percy and Gail Hannah (AP14/54634) and Ian Hindle (AP 14/55710) separately. 5. As to those respondents whose Occupation Agreements were in evidence before the Tribunal, at Decision [32] the Tribunal said: The park owner did not tender any evidence that showed the resident under an occupation agreement did not occupy these premises other than as their principal place of residence. The park owner has dealt with them under the provisions of the Act and not the provisions of the Holiday Parks (Long-term Casual Occupation) Act 2002. Although it does refer to the fee in the notice of rent increase as an "occupation fee" rather than rent. Notwithstanding this the Tribunal finds the principal place of residence of these applicants is Hacienda Caravan Park and therefore are under the Act. 1. This is the only paragraph in the Decision recording a finding that the Tribunal had jurisdiction. 2. It is self-evident from reading this paragraph that the Tribunal did not analyse the agreements or explain why they were not relevant in determining that the Tribunal had jurisdiction under the RP Act in connection with the rent increase dispute for each of the identified respondents. 3. Unlike the case of Mr Hodson, where the Tribunal appears from the transcript to have considered both the issue of whether Mr Hodson had his principal place of residence at the Park and the terms of his Occupation Agreement, the only findings the Tribunal recorded in relation to the other respondents for whom agreements were in evidence were that: 1. the park owner did not tender any evidence to show that residence who had Occupation Agreements did not occupy the premises other than as their principal place of residence; 2. the park owner has dealt with each of the respondents under the provisions of the RP Act and not under the provisions of the HP Act; 3. the notices of rent increase referred to the fee in the notice as an "occupation fee" rather than "rent"; 4. notwithstanding the form of the notices, each respondent had their principal place of residence at the Park and were therefore "under the (RP) Act". 1. In making the above findings the Tribunal does not identify the agreement, its terms or the other evidence referable to each of the respondents in order to substantiate these findings. 2. Further, although the Tribunal had before it the Occupation Agreements found behind tab 5 of the Bundle, the Tribunal does not identify why each respondent was entitled to occupy the premises as their principal place of residence. In this regard clause 45 of each Occupation Agreement limits the use of the site to not more than 180 days in total in any year and not more than 28 days in any continuous period: see for example Mr Denley's agreement, schedule 1 and cl 45.1 and 45.2 Bundle tab 5 pp 82 and 95. Further, cl 47.9 expressly prohibits occupation of the site as a principal place of residence: see for example Mr Denley's agreement cl 47.9 Bundle tab 5 p95. These matters provide some evidence that occupation of the site by the respondents as their principal place of residence was not approved by the appellant and that each of the agreements between the parties was to be regulated by the HP Act, not the RP Act 3. Insofar as the Tribunal found that the park owner has dealt with each of the respondents under the provisions of the RP Act and not under the provisions of the HP Act, again the Tribunal: 1. does not set out the evidence to which it had regard; 2. does not explain whether the written Occupation Agreements: 1. bound the respondents; 2. were varied at some time (and if so when) 3. were not the agreements regulating the rights of each of the respondents; 1. does not otherwise explain the basis upon which the parties came to be residents under the residential tenancy agreements to which the RP Act applies. 1. Further, for the reasons set out in Gennacker, the finding that each respondent had their principal place of residence at the Park is necessary but not sufficient to establish the Tribunal has jurisdiction under the RP Act. 2. The principles relating to the obligation in relation to the provision of reasons are set out in Gennacker at [172]. 3. However, as we have recorded above, the reasons provided by the Tribunal do not: 1. identify the relevant evidence, 2. examine the course of conduct between the appellant and each of the respondents, 3. record the relevant findings of fact in relation to each respondent's agreement with the appellant; or 4. identify and apply the relevant legal principles and thereby determine that each of the respondents has a residential tenancy agreement with the appellant to which the RP Act applies. 1. The appellant said that this constitutes an error of law. 2. We accept this submission and conclude the Decision should be quashed and the orders set aside. 3. It is clear from the transcript that oral evidence about these matters (other than for Mr Hodson) was not provided at the hearing. Insofar as there were statements or other information provided as evidence to the Tribunal, the Appeal Panel does not know what, if any, material was available. 4. The Tribunal made no findings concerning the entry into each of the written Occupation Agreements or the circumstance in which this occurred. Nor did the Tribunal identify the evidence in relation to the conduct of the appellant upon which the Tribunal relied to reach the conclusion that the appellant had dealt with each of the respondents as if they had residential tenancy agreements under the RP Act. Further, the Tribunal made no finding on the issue of whether the appellant gave each respondent approval to occupy the particular premises as their principal place of residence. On the other hand, there was some evidence of a course of conduct between the parties concerning earlier rent increases and earlier proceedings. For example, reference is made to application 13/48721 at [30] of the Decision. This is the application dealt with in the decision of Dodge referred to above. In this decision various of the sites to which the present application relates are identified in Schedule A. However, only Mr David Dodge and Ms Beryl Clarke are identified as parties. 5. As to those respondents for whom no Occupation Agreement has been provided to the Appeal Panel, namely Brian Hamilton, Percy and Gail Hannah and Ian Hindle, there is some evidence that their particular sites were the subject of earlier proceedings but no evidence otherwise appears to have been provided to the Tribunal about their respective agreements. Further, in the case of Mr Hindle, there is some evidence in the Bundle (about which objection appears to be taken) that the CTTT previously determined he had a residential tenancy agreement to which the RP Act applies. However, in all cases the state of the evidence is unclear. 6. Accordingly, it is not possible for the Appeal Panel to finally resolve the issue of jurisdiction and the matters will need to be remitted for rehearing. 7. The parties should be permitted to adduce further evidence. This is because the state of the evidence and the way in which the original hearing was conducted leads the Appeal Panel to conclude that each respondent may not have had an adequate understanding of the process and what was required to be proved. Further the parties may not have been afforded an opportunity to cross examine witnesses on relevant issues, the issues dealt with at the hearing focusing upon the amount of the rent increase and not the jurisdictional issue with which we have dealt. Laslty, in so far as the parties wish to raise the earlier proceedings and have the Tribunal consider any question of res judicata or issue estoppel, it may be necessary for evidence of these matters to be provided. 8. Did the respondents have residential tenancy agreements to which the RP Act applies and, if not, is the appellant estopped from denying there were residential tenancy agreements?In light of the view we have expressed above, it is unnecessary to decide these issues. 9. Insofar as a respondent wishes to assert that: 1. The written agreement in their particular case did not record the whole of the terms; 2. An estoppel arises in connection with their particular circumstances, or 3. The written occupation agreement was subsequently varied or there is an inferred agreement, these are matters about which they will be able to adduce further evidence and make submissions at any rehearing. Costs 1. The appellant submitted that it should be entitled to an order for costs if successful on appeal. 2. Section 60 of the NCAT Act requires the appellant to demonstrate special circumstances. 3. However, even if special circumstances could be demonstrated, our view is that each party should pay their own costs. 4. The appellant sought orders that the appeal be allowed and all applications should be dismissed. To this extent, the appellant has not had complete success on the appeal. In relation to the matters on which it has been successful, the principal reason for the success arises from the way in which the original hearing was conducted and the fact that the reasons suffer from the deficiencies which we have set out above. 5. This is not a case where all the evidence that was before the Tribunal has been made available to the Appeal Panel nor is it a case where, on appeal, all necessary evidence has been provided so as to enable the Appeal Panel to finally resolve all disputes. 6. While we have concluded that the appellant raised the jurisdictional issue before the Tribunal, the manner in which it was raised and the conduct of the original hearing as recorded in the transcript provided on appeal leads us to the view that the failure of the Tribunal to deal with all relevant issues in part arises from the conduct of each of the parties in the way in which the case was presented. That is not to criticise the parties for what occurred but to reflect the fact that the nature of proceedings in the Tribunal is that each party has the conduct of their own case and in this case was not legally represented. Therefore, when errors are made by the Tribunal which require correction on appeal, the Appeal Panel must have regard to this fact and to the fact that s60(1) provides that ordinarily "each party to proceedings in the Tribunal is to pay the party's own costs". Orders 1. The Appeal Panel makes the following orders: 1. By consent, the Appeal Panel made the following orders: 1. The time to appeal is extended up until 17 November 2014 for each of those appeals in Annexure A marked "Extended") 2. Leave is granted to the appellant to amend the Notice of Appeal for each of those appeals in Annexure A marked "Amended" in accordance with the document dated 17 April 2015 found at tab 1 of the Bundle of Documents tendered on appeal. 3. Orders 1(a) and (b) take effect on 24 August 2015. 1. In respect of each of those appeals listed in Annexure A marked "Allowed", the appeal is allowed; 2. In each appeal to which order 3 applies, the Appeal Panel makes the following orders: 1. The decision made 5 September 2014 is quashed; 2. The orders made 5 September 2014 are set aside; 3. The application is remitted for rehearing in accordance with these reasons and according to law by a differently constituted Tribunal; 4. the application is to be listed for directions in the Consumer and Commercial Division for the purpose of facilitating the rehearing; and 5. the parties may adduce further evidence. 1. In respect of the appeals marked "Allowed" in Schedule A, each party is to pay their own costs. ********** Annexure A SITE NUMBER / RESPONDENT OCCUPATION / RESIDENTIAL AGREEMENT & DATE OF AGREEMENT APPEAL PROCEEDINGS No ORIGINAL PROCEEDINGS No: EXTENSION OF TIME GRANTED LEAVE TO AMEND GROUNDS OF APPEAL APPEAL RESULT Site 2 - Bruce Denley 21/09/2012 AP 14/54617 RP 14/10707 Extended Amended Allowed Site 5 - Brian Hamilton Not in Bundle AP 14/54619 RP 14/10745 Extended Amended Allowed Site 6 – Roderick James Kilborn 28/02/2011 AP 14/54626 RP 14/10980 Extended Amended Allowed Site 7 - Percy & Gail Hannah Not in Bundle AP 14/54634 RP 14/10713 Extended Amended Allowed Site 8 - Barbara Timms 01/05/2010 AP 14/54642 RP 14/10877 Extended Amended Allowed Site 9 - John Pestridge 19/10/2010 AP 14/54649 RP 14/10885 Extended Amended Allowed Site 26 - Keith Smith 24/11/2011 AP 14/54651 RP 14/10921 Adjourned Adjourned Adjourned Site 27 - Wolfgang & Penny Rothlein 10/08/2012 AP 14/54673 RP 14/11003 Extended Amended Allowed Site 65 - Lester Clark 26/06/2010 AP 14/54681 RP 14/10995 Extended Amended Allowed Site 70 - Frederick Bowen 09/02/2012 AP 14/54684 RP 14/10727 Extended Amended Allowed Site 93 - Ann Withers 27/11/2009 AP 14/54691 RP 14/10857 Extended Amended Allowed Site 99 - Ronald Ross 01/11/2007 AP 14/55585 RP 14/10739 Extended Amended Allowed Site 104 - Allan Thomas 07/01/2009 AP 14/55616 RP 14/10870 Extended Amended Allowed Site 160 - Suzanne Gray 15/10/2009 AP 14/55651 RP 14/11004 Extended Amended Allowed Site 164 Peter & Julie Riley 31/03/2009 AP 14/55660 RP 14/11011 Extended Amended Allowed Site 165 - William King 10/05/2012 AP 14/55670 RP 14/11009 Extended Amended Allowed Site 166 - Kevin Perandis 26/02/2010 AP 14/55672 RP 14/10738 Extended Amended Allowed Site 172 -Thomas George 07/12/2009 AP 14/55690 RP 14/10868 Extended Amended Allowed Site 174 - Kerry Swan & Anna Martens 21/08/2007 AP 14/55691 RP 14/10886 Extended Amended Allowed Site 181 - Robert Khalu 22/07/2008 AP 14/55693 RP 14/10984 Extended Amended Allowed Site 183 - Zarina Bennetti 23/08/2009 AP 14/55699 RP 14/10889 Extended Amended Allowed Site 189 - David & Stephanie Dean 08/04/2011 AP 14/55701 RP 14/10987 Extended Amended Allowed Site 194 - Ian Hindle Not in Bundle AP 14/55710 RP 14/10716 Extended Amended Allowed Site 198 - Michael & Luisa McCluskey 19/08/2010 AP 14/55700 RP 14/10723 Extended Amended Allowed Site 199 - Jacqueline Furlonger 22/08/2012 AP 14/55705 RP 14/10736 Adjourned Adjourned Adjourned Site 201 - David Dodge & Beryl Clarke 29/03/2010 AP 14/55709 RP 14/11007 Extended Amended Allowed 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 Amendments 28 January 2016 - annexure 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: 28 January 2016