Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Myles & O'Halloran v Holiday Retreats-Rivergum Pty Ltd trading as Rivergum Holiday Retreat [2017] NSWCATCD 25 Hearing dates: 17 February 2017 Date of orders: 21 February 2017 Decision date: 21 February 2017 Jurisdiction: Consumer and Commercial Division Before: J Lynch, General Member Decision: On 17-Feb-2017 the following orders were made: 1 The Tribunal orders pursuant to section 157 (1)(b) that the Operator on or before 1 March 2017 comply with an obligation under section 83 and in particular provide to the Home Owner a copy of the utility bills commencing with and including the bill issued in January 2017 and for the preceding twelve months in non-redacted form in relation to utility charges payable by the home owner to the operator without a fee but on payment of a photocopying charge calculated at commercial rates. Legislation Cited: Residential (Land Lease) Communities Act 2013 NSW (" RLLC Act") Category: Principal judgment Parties: Robert Myles and Glenda O'Halloran v Holiday Retreats-Rivergum Pty Ltd trading as Rivergum Holiday Retreat File Number(s): RC 16/46671 Publication restriction: Nil Reasons for Decision 1. The applicants Robert Myles and Glenda O'Halloran ("Home Owner") applied to NCAT on 17 October 2016 for access to relevant electricity bills and an order for recovery of money or an order resolving a dispute regarding electricity charges from the respondent Holiday Retreats- Rivergum Pty Ltd trading as Rivergum Holiday Retreat ("Operator"). Jurisdiction 1. The New South Wales Civil and Administrative Tribunal (NCAT") has jurisdiction under the Residential (Land Lease) Communities Act 2013 NSW (" RLLC Act"). The parties commenced a Residential Site Agreement for Site (---) at Rivergum Caravan Park on 18 May 1997. The RLLC Act applies to the site agreement. Neither party raised any issue about jurisdiction. The copy of the Site agreement submitted by the Home Owner is illegible but nothing turns on it in this case. 2. Section 6 RLLC Act provides; Application of Act to site agreements (1) This Act applies to all site agreements, whether existing immediately before or coming into existence after the commencement of this section, unless a provision of or under this Act provides otherwise. (2) Where this Act applies to a site agreement, it so applies despite the terms of the agreement or any other contract, agreement or arrangement, whether made before or after the commencement of this section. (3) This Act applies to a site agreement until it is terminated in accordance with this Act. Proceedings 1. On 18 November 2016 the application came before the Tribunal and the parties were encouraged to obtain advice and to have practical settlement discussions prior to the next hearing. The Tribunal noted:- the parties are conferring with electricity account(s) to endeavour to resolve the matter. Leave was refused for the Operator to be represented by a legal practitioner. 2. At a Directions hearing on 9 December 2016 Directions were made for the Home Owner and Operator to file written submissions by 13 January and 27 January 2017 respectively and the Home Owner in reply by 3 February 2017. Leave was granted to the Home Owner to be represented by an advocate. 3. The matter was listed for determination on the papers. Neither party referred to any determinations made with respect to the Residential (Land Lease) Communities Act 2013 NSW. Home Owner's case 1. The Home Owner relied upon submission and documents submitted on 10 January 2017. 2. The Home Owner requested access to copies of electricity account showing evidence of the price that the park owner is actually paying for electricity per kilowatt hour under section 83 RLLC Act 2013. The Home Owner was provided with Document referred to as D4 which is an electricity bill from Origin Inv 177000704191 issued 26 October 2016 in a redacted form. 3. The Home Owner's case is that the Invoice in redacted form does not comply with section 83. Operator's Case 1. The Operator relied upon a submission submitted on 30 January 2017. 2. The Operator contends the Home owner is only entitled to access to bills or other documents that are payable by him to the operator not the operator's bills or other documents. 3. Further the Operator contended it would not be reasonable for the home owners to be given unrestricted access to the operator's bills or other documents in relation to utility charges 4. The Operator submits that provision of a Fact sheet satisfies the request as this correlates with the utility charges payable by the Home Owner. 5. In particular although a redacted document has been provided (D4 above) the Operator submits at para 24; "The operator's business energy bill is not related to the utility charges payable by the home owner to the operator." 6. The Operator also provided submissions on the calculation of charges under section 77 RLLC Act 2013. 7. The Operator submits it has "extinguished its obligations under section 83" Para 29 Home Owner in Reply 1. The Home Owner reiterates that the utility bills received by the operator from their utility service provider fall within section 83 and access should be provided. 2. The Home Owner refers to the objects of the Act section 3 (c) and (e) 3. The Home owners seek to amend their claim by adding a consumer claim. Section 83 Order sought 1. Power for Tribunal to make order sought 2. Section 157 RLLC Act provides: (1) The Tribunal may, on application by a party to a dispute or other matter before the Tribunal, or in any proceedings under this Act, make one or more of the following orders: (a) an order that restrains an action in breach of this Act or a site agreement or collateral agreement, (b) an order that requires a person to comply with an obligation under this Act or a site agreement or collateral agreement, (c) an order that relieves a party to a site agreement or collateral agreement from the obligation to comply with a provision of the agreement, (d) an order for the payment of an amount of money, (e) an order for the payment of compensation, (f) an order that a party to a site agreement perform such work or take such other steps as the order specifies to remedy a breach of the agreement, (g) an order that requires payment of part or all of the site fees payable under a site agreement to the Tribunal until the whole or part of the agreement has been performed or any application for compensation has been determined, (h) an order that requires site fees paid to the Tribunal to be paid towards the cost of remedying a breach of the site agreement or towards the amount of any compensation 1. Part 7 of the RLLC Act governs utility and other charges. This is the legislation for which Rules of Conduct for operators have been set out in Schedule 1 to the RLLC Act to provide that operators must have a knowledge and understanding: Section 54 provides operators must comply with the Rules of Conduct. 1 Knowledge of Acts and regulations An operator must have a knowledge and understanding of: (a) the legislation, which in these rules refers to: (i) the Residential (Land Lease) Communities Act 2013 and regulations under the Act, each as in force from time to time, and (ii) the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005 (or its replacement), as in force from time to time, and (b) such other laws relevant to the management of a community (including, laws relating to residential tenancy, fair trading, trade practices, anti-discrimination and privacy) as may be necessary to enable the operator to exercise his or her functions as operator lawfully 1. Further the Rules of Conduct provide an operator must not falsely represent the nature or effect of a provision of the legislation and act honestly fairly and professionally 10 Representations about the legislation An operator must not falsely represent to a person the nature or effect of a provision of the legislation 2 Honesty, fairness and professionalism (1) An operator must act honestly, fairly and professionally with all parties in a negotiation or transaction carried out as operator. (2) An operator must not mislead or deceive any parties in negotiations or a transaction carried out as operator 1. The legislation section 83 provides a mandatory requirement. The Operator MUST provide a Home Owner with reasonable access to bills or other documents in relation to utility charges payable by the home owner to the operator. 83 Access to information about utility charges The operator of a community must provide a home owner with reasonable access to bills or other documents in relation to utility charges payable by the home owner to the operator. 1. Section 4 defines "utility charge" as a usage charge or service availability charge for the provision of a utility. 2. The document attached to the home Owners submission D4 is relied upon by the Home Owner to show a non compliance with section 83 in response to the Home Owner's request for information. 3. The Tribunal finds a request under section 83 was made in writing on 21 September 2016. 4. Document D4 was received by the home Owner's advocate. A further request was made on 10 November 2016 requesting a non-redacted copy. On 5 September the Home Owner's advocate requested access. 5. The Document D4 contained the following information: Origin Electricity Bill Page 1 Period 27 July 2016-25 October 2016 Addressed to T/A Rivergum Caravan Park, (---) Honour Ave Corowa 2646 Amount due: Blanked out Tax Invoice 177000704191 Issue date 26 Oct 16 Your Agreement Origin standing Your Usage Summary Average cost per day Blanked out Average daily usage Blanked out Same time last year Blanked out Your indicative greenhouse emissions this Bill; Blanked out Same time last year Blanked out Saved with Greenpower N/A 33.72%increase on usage since last year Blanked out kWh last year Blanked out kWh This Year Page 2 Account Summary Opening balance Blanked out Payment received Blanked out Balance carried forward $0.00 Your new charges Other charges and adjustments Blanked out Total electricity charges-incl discounts and rebates Blanked out Your solar contribution Blanked out Total amount due ;Blanked out Payments received 24 August 2016 Bpay Debit account Blanked out Other charges and adjustments 18 Aug 16 Late payment fee Blanked out Total electricity charges Your site details:386 Honour Ave Corowa National Meter identifier; Blanked out Meter read Actual Last meter read date 25 Oct 16 Next scheduled read date 23 Jan 17(+/-2 business days) Period 27 Jul 16-23 oct 16 (91 days) Your rate: General domestic There is a reference to 2 meters Meter no 32803 and 40072387 Readings for meter 32803 Blanked out Total KWh for meter 32803:Blanked out Total kWh for meter 40072387 three different usage amounts recorded 0kWh, kWh1 and 0kWh Total kWh for both meters Blanked out Page 3 Charges First 0-997 24.20c/kWh usage Blanked out and Amount Blanked out Next 998-1745 21.81c/kWh usage Blanked out and Amount Blanked out Balance 1746+ 23.43c/Kwh usage Blanked out and Amount Blanked out Supply Charge 136.00c/Day usage Blanked out and Amount Blanked out Total electricity charges for period 27 July 2016-25 October 2016 Blanked out Total solar feed in credit for period 27 Jul- 25 Oct meter no 40072387 Peadings previous, current and export all Blanked out Solar feed-in First 0-24931 Export, rate (credit0 and Amount all blanked out Usage amounts for period 27 July 2016-25 October 2016: Blanked out How You compare sets out a bar table comparing consumption with other households. 1. In this case the Home owner states they have been required to pay utility charges to the operator. This was not disputed although neither party has provided a copy of any charges. 2. It is illogical to read section 83 as requiring the operator to give access to the very same bills they are charging the home owner. The information to be provided is "...in relation to bills or other documents in relation to utility charges..." And as the Home Owner states section 77(2) already requires the Operator to provide an itemised account. Section 77(2) The home owner cannot be required to pay for the use unless: (a) the use is separately measured or metered, and (b) the operator gives the home owner an itemised account and allows at least 21 days for the payment to be made 1. The Home Owner contends this would not be in keeping with section 3 which sets out the objects of the Act including: (e) to protect home owners from bullying, intimidation and unfair business practices, 1. The Home Owners are not in this case prospective home owners so object (c) to enable prospective homeowners to make informed choices is not directly applicable 2. Further, looking at the scheme of the Act and the description of the content of section 83 in the legislation the section is summarised as: "Access to information about utility charges" 3. The contents summary reads: PART 7 - UTILITY AND OTHER CHARGES 76. Limit on amounts payable by home owner 77. Utility charges payable to operator by home owner 78. Unpaid utility charges 79. Site fees cannot be used to pay utility charges 80. Separate measurement or metering of supply of utility 81. Utility cost in site fees 82. Tribunal review of utility cost and reduction in site fees 83. Access to information about utility charges 84. Receipt for utility charges 85. Recovery of amounts paid under a mistake of law or fact 1. Further the Act provides in section 76 limits on amounts payable by home owner. And subsection (1) provides there are certain permissible fees and (d) other fees, charges and deposits required or permitted by this Act or the regulations. The fees and charges that may be required are only those set out in the section 76. And in subsection (3) An operator of a community must not require or permit the payment of any fee , charge or deposit from a homeowner in contravention of section 76. 2. Section 77 (3) precludes the Operator from charging an amount for the use of a utility that is more than the amount charged by the utility service provider or regulated offer retailer who is providing the service for the quantity of service supplied to or used at the residential site. 3. Without access to the bill from the utility service provider the Home Owner does not have access to information to determine whether the amount charged by the operator is higher or not. 4. The Operator has raised issues of confidentiality. The Rules of conduct clearly provide that disclosure required by law is permitted. Section 83 compels the Operator to provide reasonable access and thus disclosure: 5 Confidentiality An operator must not, at any time, use or disclose any confidential information obtained while acting on behalf of a resident (which in this rule includes a prospective resident or former resident) or dealing with a resident, unless: (a) the resident authorises disclosure, or (b) the operator is permitted or compelled by law to disclose. 1. For the reasons given above and taking into account the evidence referred to above and reading and interpretation of the RLLC Act the Tribunal is satisfied on the balance of probabilities that the grounds to establish an order under section 83 have been established. Orders and Reasons 1. The Tribunal orders pursuant to section 157(1)(b) that the Operator on or before 1 March 2017 comply with an obligation under section 83 and in particular provide to the Home Owner a copy of the utility bills commencing with and including the bill issued in January 2017 and for the preceding twelve months in non-redacted form in relation to utility charges payable by the home owner to the operator. 2. The full information in the bills is sought and access is to be provided in a non-redacted form to identify whether the bills provided are in relation to utility charges payable by the Home Owner under section 83 There is so much information missing in the bill provided at D4 that the Home Owner has raised some doubt about whether there is in fact a connection between the bill provided and the Home Owner's site. This is also in the context of the Operator asserting it has several different utility arrangements. The information is necessary so that the Home Owner can assess the information and their obligations to pay charges under section 77. 3. Failure to comply with an order of the Tribunal may result in a referral of the person for proceedings for contempt of the Tribunal under section 73 Civil and Administrative Tribunal Act 2013. 4. In submissions the Home owner also sought access to a copy of the contract between the Operator and the Energy retailer Origin Energy. The Tribunal does not grant leave to amend the claim made in submissions to seek this additional order. Section 77 1. The claim for an order under section 77 has not been established as there is no particular sum of money sought and no information at this stage about whether or not there has been compliance with section 77 and therefore no cause of action. Leave to amend the claim by adding a consumer claim 1. It is not appropriate in the circumstances of leave being sought by the Home Owner at the late stage of a reply to the Operator's submission to grant leave to add a consumer claim. Procedural fairness requires such an amendment to be sought at an earlier stage of the proceedings or separately to enable the operator to respond. Leave is not granted to amend the claim. J Lynch General Member Civil and Administrative Tribunal of NSW 21 February 2017 ********** 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: 06 June 2017