Reckless v Silva Portfolios Pty Ltd t/as Ballina Waterfront Village and Tourist Park [2017] NSWCATCD 57

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Reckless v Silva Portfolios Pty Ltd t/as Ballina Waterfront Village and Tourist Park [2017] NSWCATCD 57 Hearing dates: 29 June 2017 Decision date: 03 August 2017 Jurisdiction: Consumer and Commercial Division Before: W Priestley, General Member Decision: 1. The application is dismissed. Catchwords: Utility charges, electricity, sewerage Legislation Cited: Residential (Land Lease) Communities Act 2013, sections 6, 76, 77, 156, 157, schedule 2 clauses 5 and 15. Residential (Land Lease) communities Regulations 2015, clauses 10, 11 and 12. Residential Parks Act 1998 (repealed), sections 36, 37 and 39. Residential Parks Regulations 2006 (repealed), clauses 16 and 17. Electricity Act 1964 (Qld) Cases Cited: Emmetlow Pty Ltd t/as Colonial Village v Pomroy [2015] QCATA 131 Category: Principal judgment Parties: Margaret Reckless – applicant Silva Portfolios Pty Ltd t/as Ballina Waterfront Village and Holiday Park- respondent Representation: Ms El Gazaar, Advocate from the Northern Rivers Tenants Advice and Advocacy Service on behalf of the applicant. Ms Barry, Solicitor, Heydons Lawyers Byron Bay on behalf of the respondent: File Number(s): RC 17/11073 Publication restriction: Nil

REASONS FOR DECISION

The application 1. In her application lodged on 24 February 2017, the applicant seeks the following; 1. An order declaring that an additional term of the agreement is void; 2. Access to bills or other documents to be provided in relation to utility charges payable by homeowners to the operator; and 3. An order resolving a dispute concerning an operator's compliance with ensuring unimpeded vehicular access to homes in the community at all times. 1. Order (a) relates to the imposition of a sewage charge on the applicant by a notice dated 10 December 2015, which the applicant has subsequently paid. The applicant contends this charge is not payable, because it was not payable under the Residential Parks Act 1998 ("the old Act"), or the residential site agreement, and cannot be imposed after the Residential (Land Lease) Communities Act 2013 ("the Act") commenced on 1 November 2015. 2. The applicant's purpose for seeking access to documents about utility charges (order (b)), was to enable her to determine if she had been overcharged for electricity by the respondent. At a directions hearing on 29 March 2017, the Tribunal ordered the respondent to provide those documents to the applicant. At a further directions hearing on 26 April 2017, the Tribunal granted leave to the applicant to include in her application a claim for reimbursement of electricity charges, for which she alleges she has been overcharged. The basis of the applicant's challenge to the electricity charges imposed by the respondent, is that the charges have been calculated by reference to the "standing offer" per kilowatt hour ("kWh") provided by the local energy provider, Origin Energy, when they should be calculated by reference to an average of the varying rates the respondent is charged by Origin Energy. The applicant alleges the method of calculating the charges, results in amounts that are greater than those charged by Origin Energy to the respondent, and this is prohibited by section 77 (3) of the Act. 3. At the hearing on 29 June 2017, the parties resolved the issue about access (order (c)), and advised the Tribunal no orders needed to be made about that.