ASIT Investments Pty Ltd v Koerner & Ors [2012] NTSC 89

 

PARTIES:                                         ASIT INVESTMENTS PTY LTD

                                                         (ACN 059 961 910)

 

                                                         v            

 

                                                         KOERNER, Jacqui

 

                                                         AND:

 

                                                         SCOTT, Stephen and Mary-Ann

 

                                                         AND:

 

                                                         GASSON, Deborah Kay

 

                                                         AND:

 

                                                         HABUSTA, Rose

 

                                                         AND:

                                                        

                                                         DERRICK, Peter

 

                                                         AND:

 

                                                         BIRD, Brian

 

                                                         AND:

 

                                                         MANSELL, Linda

 

                                                         AND:

 

                                                         NOSSITER, Phillip and Patricia

 

                                                         AND:

 

                                                         CLARK, Angela

 

                                                         AND:

 

                                                         MORLEY, Rick

 

                                                         AND:

 

                                                         MEULLER, Phillip

 

TITLE OF COURT:                           SUPREME COURT OF THE NORTHERN TERRITORY

 

JURISDICTION:                               SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

 

FILE NO:                                          4 of 2011 (21111228)

 

DELIVERED:                                   14 November 2012

 

HEARING DATES:                           12-16, 18 December 2011; Final Submissions 24 January 2012

 

JUDGMENT OF:                              BARR J

 

 

CATCHWORDS:

 

EQUITABLE ESTOPPEL – defendant counterclaimants occupied caravan sites owned by plaintiff – tenancy agreements between defendants and plaintiff terminated by plaintiff – whether plaintiff estopped from terminating tenancy agreements without compensation – whether express or implied representations as to ‘permanency’ made by plaintiff – whether detrimental reliance on representations – representations not made – defendants’ assumption as to permanency not induced by plaintiff – no entitlement to compensation

TENANCY AGREEMENT – FIXTURES OR CHATTELS – Residential Tenancies Act (NT) – Counterclaims for compensation and damages under s 122 – whether defendants’ improvements to caravan sites were fixtures or chattels – principles relating to fixtures – whether tenants of residential premises or tenants of vacant land – defendants held not to occupy residential premises under tenancy agreements – no entitlement to compensation and damages under s 122

TENANCY AGREEMENT – STATUTORY COMPENSATION – JURISDICTION TO ORDER COMPENSATION AND DAMAGES – Residential Tenancies Act (NT) – if tenancy agreements between plaintiff and defendants related to residential premises and not vacant land, whether plaintiff entered into tenancy agreements in breach of s 47 – whether defendants entitled to compensation under s 122(4) – order for compensation reliant on offender being found guilty by a court – Supreme Court exercising civil jurisdiction cannot find a party guilty of a criminal offence – no entitlement to compensation absent relevant finding of guilt

TENANCY AGREEMENT – STATUTORY COMPENSATION – Residential Tenancies Act (NT) – whether defendant entitled to compensation under s 122(1)(a) for loss and damage suffered due to plaintiff’s alleged breach of term implied by s 48(1)(b) – whether defendants’ losses caused by plaintiff’s breach – defendants did not suffer loss or damage because of plaintiff’s failure to comply – no entitlement to compensation and damages under s 122(1)(a)

MISLEADING AND DECEPTIVE CONDUCT – Failure to inform – whether plaintiff’s conduct in not disclosing compliance issues to incoming tenants who purchased caravan sites or made capital improvements after relevant period was misleading and deceptive – whether plaintiff created false impression of lawfulness – plaintiff not party to defendants’ site purchase agreements – plaintiff made no representations as to ‘permanency’ of defendants’ tenure – relationship of landlord and tenant  does not ordinarily create disclosure obligations – plaintiff never assumed responsibility to advise or disclose information – claim dismissed

NEGLIGENCE – DUTY OF CARE – PURE ECONOMIC LOSS – Relationship of landlord and tenant under weekly tenancy – whether plaintiff owed duty of care to defendant counterclaimants to provide unsolicited information, advice and warnings relevant to contractual dealings with third parties – whether plaintiff had duty to ensure defendants’ premises complied with relevant safety standards – whether plaintiff had duty not to allow defendants to occupy premises in breach of Fire and Emergency Regulations – no personal injury or property damage suffered – claim for damages for pure economic loss only– relationship between parties not one which raised obligation of disclosure – plaintiff not subject to duties of care as alleged – no entitlement to damages

Residential Tenancies Act (NT) s 4, s 6(h), s 47, s 48, s 49(1), s 57(1)(b), s 64(3), s 122

Fire and Emergency Regulations r 12

 

Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; Giumelli & Anor v Giumelli (1999) 196 CLR 101, distinguished

 

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; Lam v Ausintel Investments Australia Pty Ltd (1989) 97 FLR 458; Re Bolton; Ex Parte Beane (1987) 162 CLR 514, followed

 

R v JS [2007] NSWCCA 272, applied

 

Amad v Grant (1947) 74 CLR 327; Attorney-General of the Commonwealth of Australia v R T Co Pty Ltd (No. 2) (1951) 97 CLR 146; BP Refinery (Western Port) Pty Ltd v Shire of Hastings (1977) 180 CLR 266; Australian Provincial Assurandce Co Ltd v Coroneo (1938) 38 SR (NSW) 700; Brooks v Burn Philp Trustee Co (1969) 121 CLR 432; Butcher and Anor v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; Codelfa Construction Pty Ltd v State Railway Authority (NSW) (1982) 149 CLR 337; May v Ceedive Pty Ltd [2006] NSWCA 369; Hill v Van Erp (1997) 188 CLR 159; L. Shaddock & Associates Pty Ltd v Parramatta City Council (1981) 150 CLR 225; Leda Holdings Pty Ltd v Oraka Pty Ltd [1998] ANZ ConvR 582; National Australia Bank Ltd v Blacker & Anor (2000) 104 FCR 288; NH Dunn Pty Ltd v L M Ericsson Pty Ltd [1980] ANZ ConvR 300; Northern Sandblasting v Harris (1997) 188 CLR 313; Pegasus Gold (Australia) Ltd v Metso Minerals (2003) 16 NTLR 54; Perre v Apand Pty Ltd (1999) 198 CLR 180; Re May Bros Ltd [1929] SASR 508;Reid v Smith (1906) 3 CLR 656; Rhone-Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 12 FCR 477; The North Shore Gas Company Limited v Commissioner of Stamp Duties (NSW) (1940) 63 CLR 52, considered

 

REPRESENTATION:

 

Counsel:

    Plaintiff:                                      A Wyvill SC with S Brownhill

    Defendant:                                    P Britten-Jones

 

Solicitors:

    Plaintiff:                                      Povey Stirk

    Defendant:                                    Northern Legal Services

 

Judgment category classification:    B

Judgment ID Number:                       Bar1219

Number of pages:                             90


IN THE SUPREME COURT

OF THE NORTHERN TERRITORY

OF AUSTRALIA

AT DARWIN

 

ASIT Investments Pty Ltd v Koerner & Ors [2012] NTSC 89

No. 4 of 2011 (21111228)

 

                                                     BETWEEN:

                                                     ASIT INVESTMENTS PTY LTD

                                                     (ACN 059 961 910)

                                                         Plaintiff

                                                     AND:

                                                     JACQUI KOERNER

                                                         Third Defendant

                                                     AND:

STEPHEN AND MARY-ANN SCOTT

    Fifth Defendant

AND:

DEBORAH KAY GASSON

    Sixth Defendant

AND:

ROSE HABUSTA

    Seventh Defendant

AND:

PETER DERRICK

    Ninth Defendant

AND:

BRIAN BIRD

    Eleventh Defendant

AND:

LINDA MANSELL

    Twelfth Defendant

AND:

PHILLIP AND PATRICIA NOSSITER

    Thirteenth Defendant

AND:

ANGELA CLARK

    Seventeenth Defendant

AND:

RICK MORLEY

    Twenty-First Defendant

 

AND:

 

PHILLIP MEULLER

    Twenty-Second Defendant

 

CORAM:     BARR J

 

REASONS FOR JUDGMENT

 

(Delivered 14 November 2012)

 

Introduction

[1]       On 4 July 2011, an order was made by consent that all the defendants in this proceeding provide vacant possession of the sites occupied by them in the Sienna Caravan Park, near Alice Springs.  Within three months after the making of the order, the Sienna Caravan Park closed down.

[2]       At trial, ten of the defendants pursued counterclaims against the plaintiff, pleading multiple causes of action: damages for breach of contract; breach of trust; equitable estoppel; misrepresentation (incorporating a claim for unconscionable conduct); damages in tort; compensation and damages under the Residential Tenancies Act (NT); and claims for misleading and deceptive conduct under s 52 Trade Practices Act.  Another claimant,[1] not a defendant but claiming though or in connection with the twenty-second defendant, sought similar relief. 

[3]       Although there are factual and legal matters in common to all the counterclaims (and to the one non-defendant claim mentioned), each counterclaim or claim must be separately considered.   

Brief background history of the Sienna Caravan Park

[4]       The plaintiff is the owner of the Sienna Caravan Park (“the Park”).  The Park was part of a larger development comprising the caravan park, a tavern and some 51 residential units acquired by the plaintiff in August 1993.  The Park eventually came to be held by the plaintiff under a separate title, with an area under title of just over one hectare.

[5]       After acquiring the Park in 1993, the plaintiff continued to operate the business carried on by the previous owner of letting of caravan sites to tenants.  Each site had its own separate toilet and ablution facilities.  The sites were rented on a long term basis.  The sites were described and known as “permanent sites” to distinguish them from sites for overnight or short term occupancy.  The term “permanent sites” is understood in the tourist and caravan park industry to mean sites which are let long-term and which are therefore not available for overnight or short term occupancy.[2]  Under the plaintiff’s management, the Park required tenants to agree to an occupation period of not less than three months.

[6]       The usual arrangement was that a tenant would sign an agreement for three months’ occupation and, at the end of the three-month period, would be a tenant from week to week.

[7]       In earlier times, the tenants signed a document described “Rules and Conditions for Tenants in the Caravan Park”, and in later times, tenants signed a document described “Sienna Apartment Complex Tenancy Agreement”. 

[8]       In relation to tenure, the Rules and Conditions document did not specify a minimum period of occupation, but provided that rent was to be paid weekly in advance.  The tenant was required to give one week’s notice before vacating the site.  These provisions suggest that the tenancy was at all times a weekly tenancy.[3]

[9]       The Tenancy Agreement document contained a “Lease Start Date” and “Lease End Date”.  It provided for a weekly rental amount.  It further provided:

“Minimum lease is 3 months.  At the end of 3 months, your lease will be on a week to week basis (therefore, when departing, 1 weeks notice must be given or payment of 1 week’s rent).”

[10]     Rental under the Tenancy Agreement document was to be paid weekly and kept one week in advance at all times.  The tenant was to give one week’s notice before vacating the site.  These provisions suggest that, after the initial three months, the tenancy became a weekly tenancy.

[11]     For the purposes of this litigation, the differences between the earlier Rules and Conditions document and the later Tenancy Agreement are not material.  None of the defendant counterclaimants was still within the initial three month period of tenancy at any material time to his or her cause of action.

[12]     Occupancy of the Park was quite stable.  The Park was secure, well-managed, and was a pleasant place to live.  The plaintiff employed on-site managers with relevant experience in property and grounds maintenance and leasing administration.[4]  On all the evidence, the site rentals were set at a very reasonable level.[5]  Many of the tenants stayed for lengthy periods, some for many years.  Many of the tenants made their dwellings more permanent: they put their caravans on blocks; they built demountable structures and even more permanent structures as extensions to their caravan accommodation; they built sheds and carports; and they erected roofs over their caravans and other structures for sun and weather protection.  However, none of the tenants obtained building permits or permits to occupy under the Building Act with respect to the fixtures or structural improvements erected by them or occupied by them.[6] 

[13]     The plaintiff was aware of issues of building non-compliance when it purchased the Park.  It sought to exercise some control over the erection of structures by the tenants by requiring that permission first be sought from the plaintiff’s caravan park managers.  Although the earlier Rules and Conditions document contained no express reference,[7] the Tenancy Agreement document contained a clause with the side heading “Alteration” which read as follows:-

“Sheds, extensions, paths, washing machines, are not to be erected or installed, Tree’s are not to be trimmed or new plantings undertaken without prior written permission of Management.”[8]  

[14]     Over time, not all tenants who left the Park removed their caravans, demountables, and other structures.  Many would sell them to an incoming tenant, who would then take over the site and enter into a tenancy agreement with the plaintiff.

[15]     Witnesses at trial generally referred to the overall arrangement under which an agreement was entered into between outgoing and incoming owners for the sale of structures and chattels on a site, with the incoming owner then becoming a tenant of the plaintiff, as the sale or purchase of the ‘site’.  It is convenient to adopt that usage, but it is important to remember exactly what it denotes.

[16]     The plaintiff did not profit from the sale or purchase of the sites and the structures and other improvements erected on such sites.  With one limited exception, the plaintiff was not a party to, and played no role in negotiations between incoming and outgoing tenants for the sale and purchase of sites.[9]

[17]     Nonetheless, the plaintiff obtained a real benefit from the fact that there were permanent sites with structures and other improvements erected on them, in that a tenant who erected the structures or improvements or who purchased them erected in situ was for that reason more likely to be committed to staying at the Park and less likely to leave.

[18]     The fact that site rentals were set at a level which was advantageous to tenants was an additional inducement to tenants to stay on.

[19]     The Park generated an income stream of approximately $263,000 annually.[10]  What the landlord may have lost in low or lower individual site rentals was probably made up for by high occupancy and low turnover.  Occupancy rates were at 95%, at times up to 100%.  Patrick Black, director of the plaintiff, explained the plaintiff’s approach as follows:

“--- I set the rents initially based upon what the current rent was when we took it over, bearing in mind the clientele in the market that we had, to maintain the maximum occupancy that we could.” [11]

[20]     It is clear that the plaintiff did not seek to exploit the tenants’ commitment to the site and improvements they had erected (or purchased) by increasing rentals to an unreasonable level.  Indeed, all of the counterclaimants’ damages claims were based directly or indirectly on their loss of the benefit of a reasonably-priced site for their caravans and improvements.[12] 

Events leading to the closure of the Park

[21]     On 5 July 2006, the Northern Territory Fire and Rescue Service (“Fire and Rescue”) carried out an inspection of the Park.  The pro forma inspection notice, provided to the plaintiff, contained a number of comments, one of which was: “Separation between caravans is not in accordance with regulations or the BCA”.[13]  After the on-site inspection, the Alice Springs Station Officer, Community Safety, wrote to the plaintiff raising a number of concerns.  I extract the relevant parts below:

NTFRS Requirements:

1.2. All permanently sited caravans would appear to be closer than 3 metres to the boundaries of the property and without the required separation between caravans, this will need to be rectified, see also 1.7 and 2.1 below for further advice on how the owner/occupiers can address this matter. …

1.7. Of particular concern to the NTFRS are the numerous unauthorised structures associated with permanent type temporary residences (caravans) within the park, see 2.1 below.

NTFRS Recommendations:

2.1. An online search of the government land information system ILIS would indicate that no planning applications have been lodged and no building permits (Permits to Build or Permits to Occupy) have been issued for the permanent caravans and other  attached structures on this lot.  The NTFRS recommends that the owner engages a registered private Building Certifier and/or seeks written advice from the Building Advisory Branch and Planning section of the Dept. of Planning and Infrastructure on this matter and the issues raised in 1.2 and 1.7 above. …

[22]     Patrick Black, director of the plaintiff, said in evidence that he did not know, in 2006, whether Fire and Rescue was going to enforce compliance with the regulations.  However, he knew, or at least "had a pretty fair idea" that, if Fire and Rescue did enforce compliance, the Park would probably have to close down.[14]  Creating a three metre separation between caravans and other structures would have been difficult, given that many of the caravans and structures had been fixed or erected in such a way that they were contiguous to one another, or with only minimal separation.  Mr Black and his fellow directors took the decision that the plaintiff would continue to operate the caravan park until the plaintiff was advised by the Fire and Rescue that it intended to enforce the regulations.  The plaintiff appreciated that it was in breach in so doing, but decided to keep going until told to stop.  The plaintiff did not disclose the problems notified to it by Fire and Rescue in July 2006 to any existing tenants of the Park, nor did the plaintiff disclose the problems to any new tenants.  The plaintiff continued to accept new tenants into the park in the knowledge that those tenants were paying substantial sums of money (“reasonable dollars”, to use the words of Mr Black[15]) to purchase sites.

[23]     Five of the counterclaimants purchased their sites before July 2006.  In order of purchase, they were Peter Derrick (site 11), May 2000; Rose Habusta (site 9), May 2003; Angela Clark (site 30), November 2003; Rick Morley (site 35), sometime in 2004; and Linda Mansell (site 15), June 2005.  Some of the pre-July 2006 purchasers carried out improvements to their sites after July 2006.  Rick Morley, for example, arranged to have a concrete slab laid in October 2009, at a cost of $5,400.[16] 

[24]     The remaining six counterclaimants (and here I include the non-defendant claimant) purchased in the period March 2007 to November 2009.  They were Jacqui Koerner (site 3), March 2007; Phillip and Patricia Nossiter (site 16), March 2007; Stephen and Mary-Ann Scott (site 6), July 2007; Brian Bird (site 14), September 2007; Deborah Gasson (site 7), April 2009; and Mueller Nominees/Phillip Mueller (site 17), May 2009.  Mr and Mrs Nossiter spent an estimated $9,000 on improvements shortly after purchasing their site in March 2007.[17]

[25]     Mr Britten-Jones, counsel for the counterclaimants, explored the ambiguities in the plaintiff’s post-July 2006 conduct in his cross-examination of Mr Black,[18] extracted below:

Don't you think it would have been appropriate for you to advise new tenants so that they could decide for themselves whether to make the purchase and perhaps take the risk that the park would close down? - - - Again it comes down to buyer beware and doing your own investigations as to all the circumstances surrounding the facility and that implies both building regulations and fire regulations when you look at the park.

So you left it up to the tenant to protect his or her own interests in that regard? - - - We weren't party to the transaction.

But you were a party to the lease transaction? - - - Yes, absolutely.

And you knew that if the Fire and Emergency Service forced compliance that you would have to exercise the right that you say existed to terminate the lease? - - - Not particularly.  We would have to consider what our options would be if the Fire and Rescue enforced that three-metre separation.  At that stage in 2006, right through to 2010 as I recall, we never got any professional advice in relation to how those issues may have been addressed.

But I thought you told me before that really in your mind you knew that the park would have to close down if the compliance was enforced? - - -I wouldn't say close down but we would have to change the structure of the park.

[26]     Mr Black thus deviated from the concession (as to probability of closure) he had made a short time earlier.[19]  I am satisfied that Mr Black knew or strongly suspected after July 2006, even without consultants’ reports, that it would have been very difficult if not impossible to continue to operate the Park if Fire and Rescue enforced compliance with the three metre separation requirement, and/or if the Department of Planning and Infrastructure enforced building compliance.[20]

[27]     The plaintiff continued to carry on the caravan park business after July 2006 in the same way it had prior to July 2006.  Fire and Rescue did not take any action to enforce the regulations and the plaintiff allowed the sleeping dog to lie.

[28]     However, on 6 December 2009, a fire broke out in one of the structures at the Sienna Caravan Park.  The fire occurred on site 24 and did not spread to any of the other structures or sites, although it caused significant damage to the improvements on site 24 and also damaged the Park’s external boundary fence.

[29]     Fire and Rescue subsequently identified a number of issues in a letter from the Southern Region District Officer to the plaintiff’s managers dated 9 December 2009.  The letter read in part as follows:

“As a result of the fire, a number of issues have been identified regarding the park's ability to comply with aspects related to the Fire and Emergency Regulations in relation to fire and life safety provisions for caravan parks.

As a result, the NTFRS Community Fire Safety Section wish to advise that an inspection of the premises is to take place in conjunction with the owner/occupier of the park to identify and ultimately rectify any areas of non-compliance.”

[30]     An inspection took place on 15 December 2009, as a result of which the plaintiff was required to rectify a number of matters within 28 days.  The pro forma inspection notice read, relevantly, as follows:

The above site does not comply with NTFRS regulations...

The 3 metre separations required between the structures and the boundary needs to be rectified.

The park has permanent structures with no permits to build or occupy.  This issue should be addressed with the Government Building Branch.

[31]     The plaintiff was informed that a further inspection would be carried out on 12 January 2010.

[32]     On 22 December 2009, Patrick Black wrote to all of the real estate agents and conveyancing firms in Alice Springs, relevantly as follows:

As you would be aware there have been a number of sales of "premises" at the Siena Village Caravan Park and there are currently a number that are up for sale.

As a possible party to the sale process of these establishments I bring to your attention that any purchaser has no title over the land on which these premises are sited and that the adjoining ablution facility is owned by ASIT Investments Pty Ltd.

As there is no long-term security in the tenure of the site possible purchasers need to be aware that any investment they make may be compromised should this tenure not be ongoing.

Additionally, any potential purchaser needs to be mindful that the structure they are purchasing should comply with appropriate legislation in terms of setbacks and building certification.

I bring these matters to your attention so that you can advise your respective clients accordingly.

[33]     It may be noted that none of the counterclaimants purchased a site after December 2009.  The last site purchase was in May 2009.[21] 

[34]     The follow-up fire inspection took place on 12 January 2010, at which time it was noted that none of the items raised in the notice issued 15 December   had been dealt with.  The plaintiff was given an extension to 26 January 2010 and was informed in the pro forma inspection notice as follows:

If by this date the owner/occupier has not resolved the issues from the notice to owner/occupier number 011840 or cannot provide documented evidence that these issues are being resolved in a timeframe acceptable by NTFRS, then infringement notices will be issued.

A further inspection will be carried out on 27/1/2010 at 10 AM.

[35]     The plaintiff’s site manager obtained an extension of time and the further inspection was postponed to 25 February 2010.  However, on 16 February 2010, Patrick Black wrote to Fire and Rescue, as follows:

“… The owners acknowledge that the Siena Village Caravan Park does not comply with fire regulations principally in relation to set back requirements.

As you are aware to make the caravan park compliant is going to involve considerable alteration to the current building structures that are in place and this will undoubtedly cause severe hardship for the considerable number of the 44 families that are resident in the caravan park.

Whilst we acknowledge the requirements of the fire regulations it is requested that the Northern Territory Fire & Rescue Service provide an extension of time to 30th June 2011 to enable us to have the caravan park become compliant.

It is requested that this length of extension be provided as this ties in with the current government moratorium in relation to existing building structures under the Building Act.

At this stage the owners of the complex have not advised the tenants of any outcome from our previous conversations other than noting that we are in deliberations with your department.”

[36]     Subsequently, the Acting District Officer, Southern Region, replied to Mr Black, noting the acknowledgement that the Sienna Village Caravan Park did not comply with fire regulations.  Fire and Rescue agreed “in principle” to the requested extension to 30 June 2011, in line with (what was said to be) the then current government moratorium in relation to non-compliant structures under the Building Act, but on condition that a program of work be submitted with timeframes endorsed by a registered Building Certifier.[22]

[37]     On 14 April 2010, Mr Black wrote to Paul Hinkly, a building surveyor or certifier, to request an on-site meeting and “an initial appraisal of the likelihood of [the Park] meeting both fire and building regulations to make the park compliant”, and “a more detailed appraisal of specific works which would have to be carried out.”

[38]     A meeting took place on site between Mr Black and Mr Hinkly on 23 April 2010.

[39]     Mr Hinkly subsequently wrote to the plaintiff on 5 May 2010, referring to the “compliance issues” discussed at the April meeting and listing the many things which would be required to obtain what Mr Hinkly called "post-construction certification".  The many things included: a detailed dimensioned site survey plan; plans of all buildings, caravans and structures on the site; detailed drawings indicating the location and type of fire separation between buildings; plumbing, glazing and electrical certificates of compliance; and a structural report for all existing structures.

[40]     In a letter dated 6 May 2010, Mr Hinkly referred to a subsequent conversation with Mr Black and explained that, for the existing structures on site to comply with the Building Code of Australia, the structures would need to have a minimum clearance of 1.8 metres from adjoining structures.  If such clearance could not be obtained, it would be necessary to install firewalls or some other approved separation between the structures in order to comply with the Building Code of Australia.[23]

[41]     On 28 April 2010, Mr Black wrote to all tenants, informing them of the Park’s non-compliance and stating that significant alterations would need to be undertaken to comply with fire and building regulations.  He explained the condition on which the extension of time to 30 June 2011 had been granted, namely that a program of works to have all sites comply with the regulations had to be approved by a registered building certifier.  Mr Black’s letter continued:

As a consequence we have engaged the services of a building certifier to determine what needs to be done to make the caravan park sites comply with both the fire and building regulations.

At this stage we are waiting on a formal response from the building certifier which will then determine what course of action will be adopted.

It would appear from our initial discussions with the certifier that being able to make the current structures comply with the regulations is going to be extremely difficult, if not impossible.  As such the extension to 30th June 2011 to make the property comply with the regulations is in all likelihood going to be a final determining date for occupation in the park. ...

[42]     Mr Black sought the assistance of another building certifier who provided advice by letter dated 8 June 2010.  With reference to the Building Act and Regulations and the Fire and Emergency Act and Regulations, the second building certifier advised “This combined legislation means that Sienna Village Caravan Park has a long way to go in order to gain compliance. … To commence fixing the problems will upset some residents due to the fact that a number of them have built to the boundary of, or over, their allocated space.”[24]

[43]     The plaintiff ultimately decided that it would not carry out upgrade works, and that it would terminate all tenancy agreements.  The defendants accept that the reason the plaintiff decided to terminate all tenancy agreements was the difficulty, if not the impossibility, of making all the building structures at the Park compliant with the regulations.[25]  Mr Black notified the tenants of the plaintiff’s decision by letter dated 15 September 2010.  The plaintiff proposed that all of the tenants enter into an agreement under which their tenancies would be terminated with effect from 15 June 2011 and under which the plaintiff would give each of the tenants $5,000 to assist with the cost of relocating: $2,500 payable on execution of the proposed agreement and $2,500 to be paid to each tenant after he or she had vacated and cleared his or her site.

[44]     Notwithstanding that the order for vacant possession referred to in par [1] was made by consent, the plaintiff’s right to terminate all tenancy agreements (as it did) remains an issue in this litigation.  

The counterclaims

[45]     Most of the causes of action making up the defendants’ counterclaims rely on the allegations that the plaintiff was aware of and approved the sale of each site to the relevant defendant and that the plaintiff met with each defendant prior to any contract being entered for the purchase of a site.  At each such meeting, it is alleged, the plaintiff’s representatives “said words to the effect that the defendant was able to reside at the park on a permanent basis”.  It is further alleged that the plaintiff’s representatives said to each purchaser, at each pre-purchase meeting, that if the purchaser wished to vacate at some time in the future then there would be no impediment to his or her fixture being onsold to an incoming occupant.[26]

[46]     The defendants’ cases attribute great significance to the word “permanent”.  At trial, counsel for the defendants argued that the combination of the following things: (1) the statement allegedly made to each purchaser at the alleged pre-purchase meeting that each purchaser would be able to reside at the Park “on a permanent basis”, (2) the fact that many residents at the Park had been living there on a long term basis, (3) the fact that purchasers paid money (albeit not to the plaintiff) for the purchase of their sites, and (4) the fact that there was no express power in the landlord to exclude any tenant from the Park unless the tenant was in violation or breach of the rules and regulations, had the consequence that the plaintiff was committing itself in the case of each defendant to the grant of a life tenancy, or that the plaintiff should be held to have granted a life tenancy to each defendant.[27]  

[47]     As to the alleged pre-purchase meetings with each counterclaimant purchaser, some of the defendants had already committed themselves to the purchase – personally, if not legally – before even speaking with the plaintiff’s on-site managers about tenancy arrangements.  Moreover, the evidence of conversations which took place between each of the defendants and the plaintiff’s representatives (even where the relevant conversation took place before a defendant had entered an agreement for the purchase of a site) does not support a case for life tenancy, or indeed anything more than a weekly tenancy after the initial three months.

[48]     The absence in the tenancy agreements of an express power in the landlord to exclude any tenant from the park unless the tenant was in violation or breach of the rules and regulations does not change the nature of the periodic (weekly) tenancy so as to prevent the landlord from terminating the tenancy for any lawful reason, and in the manner permitted by law.  I add that none of the defendants at the time of becoming a tenant appreciated or attached any significance to the absence of this express power.  None of them gave evidence to the effect that the absence of this express power shaped his or her understanding of his or her rights.[28]  It is not pleaded as a component of the alleged “representation as to permanency”.  The matter seems to have assumed significance retrospectively.   

[49]     The Table below summarises the evidence of the defendant (and the one non-defendant) counterclaimants, with some comments made by me:-

Defendant

Evidence in chief

Evidence in cross-examination and/or re-examination

Peter Derrick

 

Site 11

“After speaking to the previous owner I agreed on the purchase price.  I then spoke to the Managers, who wanted to meet me for the purpose of approving me as a suitable occupant of the Park … They said the purchase price was between myself and the owner.  I was led to believe by the Managers that my tenure was permanent but I cannot recall the exact conversation I had with the Managers.  They did not tell me that I could be asked to leave at short notice.”[29] 

Mr Derrick agreed that he had not asked the landlord for a long-term or lifelong commitment; that the landlord had not volunteered to give him any such commitment; that he had paid the landlord only three or four weeks bond and a week’s rent in advance; and that he had committed to only a week’s notice if he wished to leave.

 

“If the commitment was a life commitment that would have amounted to decades.  Possibly?—It could have, yes.

 

And for the reasons that I have just taken you through you had no basis for thinking that you had a right to stay there for decades, did you?—Not when you put it that way, no. I was hoping to stay there and would die there, but.

 

But a hope isn’t a legal right, is it?—No, it’s not.” [30]

 

Rose Habusta

 

Site 9   

“I purchased site 9 … on or about 16 May 2003 from Sue and Richard Schulte for $18,500.00. Mrs Schulte worked at the time in the office of the Park. It was my understanding that she was employed by the Park owners and I dealt with her when arranging to take up occupation in the Park.”

 

“At the time of deciding to purchase, I asked Mrs Schulte how long I could expect to stay in the Park and she said words to the effect that some residents have been living here for a few months and others for up 20 years and that as long as we paid the rent weekly there were no worries with staying.  She gave me a document with rules and regulations at the Park. … There was nothing in the Park rules that suggested that the owners could give notice to vacate at short notice or at all. I was led to believe that for so long as I paid the rent and complied with the Park rules then we could remain in occupation.”[31]

Mrs Harbusta was told about Sienna Park by a friend who had lived there for more than ten years.[32]  She formed the impression as to permanency from her observations and understanding of other tenants’ long-term occupancy:

 

“So what you’d heard about the park was that there were permanent sites there. Yes? --- I am not sure, but I base on that time of – the time that they lived there. That’s what I based it.

 

Okay?--- That they can live there as long as they paid the rent.”[33]

 

“So that’s something you assumed based on what you knew about what people had been --- ?--- I have heard maybe you can live permanently so long that you pay the rent, because that’s what Susan Schulty said to me, so long as you pay the rent, no problem.”[34]

 

“… She said that as long as you pay the rent regularly, you’ll be like a permanent there.”[35]

 

Mrs Harbusta agreed that it was unlikely that she asked what plans the plaintiff had for the Park’s future, or how long the Park might operate into the future. [36]

 

“In your dealings with Ms Schulty … You didn’t ask her for a commitment from the landlord to let you stay there for the rest of your life, did you?--- No it really doesn’t come to that because it’s been too long already and I think she just did this one without explaining.

 

But you didn’t ask her for that commitment from the park, did you?---Well, because I did not think too much about these things. 

 

Are you agreeing with me, that you didn’t ask her?--- No I did not ask her.

 

Okay. And she didn’t volunteer any sort of right like that, did she?--- No.”[37]

 

Angela Clark

 

Site 30

“In or about November 2003 I was living in rented accommodation in Alice Springs, and wanted to buy somewhere permanent. …

 

My mother was a resident of … the Park and she told me that site 30 was for sale … After negotiating with the former owner Mr. Paul Tweedie he advised me to go to the office as I needed to be approved by the Park management before the sale could proceed. 

 

I spoke to the Managers, Sue and Dean Nankivell who welcomed me into the Park. This was because my mother was already a resident. They told me it was a lovely Park with permanent residents who had been there for years and who keep an eye out for each other. I was led to believe by them that this would be my permanent home and that for so long as I paid the rent and complied with the Park rules I could remain in occupation. I was informed that I had to pay a bond and pay rent which at that time was $95.00 per week. …. the Sienna Apartment Complex Rules and Conditions signed by me and dated 6 December 2003.”[38]

 

Ms Clark purchased site 30 on her mother’s recommendation that it was a good place for her to live and a “good purchase” for her.[39] 

 

The former owner (vendor) of site 30 told her it was a ‘permanent site’, by which she understood that people actually lived at the site as opposed to being tourists or holiday makers who just pass through after a short time.[40]

 

Ms Clark agreed with the vendor to buy site 30 for $20,000 on the basis of what she then knew about the park, from talking to her mother and to the vendor, and having herself looked at the site. She paid the deposit to the vendor, since she wanted to move in quickly. She believed that she had already obtained approval from the Park managers to be a tenant.[41] 

 

Ms Clark signed a Rules and Conditions document[42] at or about the time she first became a tenant. She gave the following evidence in relation to that document and the tenancy created by it:-

 

“And at the time that you signed this document, you hadn’t actually asked anyone who was a representative of the landlord to give you a commitment to letting you stay for as long as you wanted, including until you die, had you?---No.

 

And no one had offered you that sort of commitment either, had they? No one had said that to you?---No, apart from ‘permanent’.

 

Okay. And it wasn’t written on the document that you signed with the landlord, was it, that you could stay there as long as you wanted, including until you die?---No.

 

And all you’ve given to the landlord at that point in time is your bond and a week’s rent?---Mm.

 

And by signing that agreement, all you’ve committed to is giving them a week’s notice if you want to leave?---Yes. ……

 

Okay, so a commitment on the part of the landlord to let you stay in the site as long as you wanted right up til the day you died would be a commitment for many, many years – decades?---Yes.

 

And so there was no basis for you to think, at that point in time, that you had that sort if right, was there?---No.”[43]

 

Rick Morley

 

Site 35

“… sometime in 2004. I was told … that Site 35 was for sale. I was very impressed with the Park set-up, the fact that permanent sites were being offered for sale and the fact that you have your very own en-suite. My friend directed me to the Park Manager’s Office. Sue Nankivell told me they were having problems with the tenant at Site 35 who was behind on his rent. …

 

Sue Nankivell took me to view Site 35. She said I could make her an offer and I could then become the owner of the Site on condition my offer was more than the money owed. I recall Sue telling me that they screened all persons before accepting them as a resident at the Park and that all residents in the Park were permanent. Sue led me to believe that the site was permanent and that for so long as I paid my rent and complied with the Park rules I could remain in occupation. … I made an offer between $13,000.00 and $14,000.00 which was accepted.

 

I gave the money for the purchase of Site 35 to Sue Nankivell.  … Sue told me that she would deduct the amount of rent owing and forward the balance on to the previous owner.”[44]

 

“I thought this was going to be my last stop before I went to Boot Hill.”[45]

 

Mr Morley signed a Rules and Conditions document dated 24 November 2004.[46]

 

Mr Morley’s evidence in cross-examination did not support his case for a life tenancy or similar tenure.

 

He understood the difference between permanent and short-tem residents:-

 

“And Sue told you, did she, that all of the park’s residents were permanent residents?---Yep.

 

And you understood that to mean that people could live in the park as opposed to other parks where people come and go, tourists, holiday-makers, that sort of thing?

--- Well that’s one of the reasons why I wanted to go there because it was the same people all the time.”[47]  

 

He did not attribute any representation as to permanency to Sue Nankivell; rather it was his assumption :- 

 

“And she didn’t say anything else to you on that occasion did she?---As far as I can recall nothing much else was said.

 

So during that conversation you had with Sue, you didn’t ask her about what the future plans were for the park did you?---Well I didn’t ask anything like that because I assumed that it was going to – it’s a park and it would be like that for years to come.”[48] [italic emphasis added] 

 

Mr Morley said that he would not have proceeded with the purchase if he had known the Park would close; he would have “saved his money”. [49]  However, his evidence a short time later appeared to be inconsistent:-

 

“And when you did that with Sue, paid your bond and your rent and signed that document, you didn’t ask what the future plans for the park were at that time?--- Well, I would have thought it’d be none of my business. I don’t ask people questions that don’t affect me really.”[50]  

Linda Mansell

 

Site 15   

“On or about 7 June 2005 I moved in to site 15 at the Sienna Apartment Complex … . The purchase price was $15,000.00 which I paid by instalments to the previous owner Ms. Lizzy Evans. ….

 

Before moving in I spoke to Dean and Sue Nankivell who were the managers of the Park and was told that I was required to pay $105 per week in rent. I cannot remember the exact conversation but I was left with the impression that my tenure was permanent and I could stay as long as I wanted. Nothing was said to me that the Park did not comply with the fire regulations and that there was a possibility that the Park would close. I did not sign a written tenancy agreement.” [51]

 

Ms Mansell’s evidence in cross-examination did not support her case for permanent tenure:-

 

“A permanent caravan park is a name used to describe caravan parks that aren’t for tourists and don’t have that maximum stay?---Yes.

 

And so this stay is unlimited?---Yeah.

 

There’s no agreed period after which they have to vacate?---Yep.

 

And that’s what Sienna was, wasn’t it? A park where people lived and there was no fixed period after which they had to vacate?---As far as I knew that, we were permanent.

 

That wasn’t the question I was asking you. Should I ask it again?---Yep.

 

Yes. As far as you were aware, Sienna was that type of caravan park where people were permanent?---Yes.

 

In a sense of they could reside there without a fixed period of time being set in advance?---Yeah.”

 

Ms Mansell did not give evidence as to anything actually said by the plaintiff’s managers which could reasonably have caused her to have “the impression” that her tenure was permanent.

 

Jacqui Koerner

 

Site 3

“In March 2007 I purchased site 3 from Mr Jim Nelson for $34,000.00. Once again when I changed ownership at the front office, nothing was ever said by Sue or Dean about any problems with the Park. I was given the impression that being permanent sites that I could stay there forever.”[52]

Ms Koerner agreed the correct date for the start of her tenancy agreement was 30 April 2007.[53]

 

Ms Koerner agreed that when she left the office after speaking to the plaintiff’s park managers on 30 April 2007, she understood the terms of her tenancy to be a minimum lease of three months, at the end of which her lease would be on a week to week basis.[54]

 

“Nothing was said to you, by anybody on behalf of the plaintiff, about how long you could stay at the park. Nothing was ever said, was it? - - - Not as such, but they had made a point of saying, ‘Enjoy being here’. They made me feel welcome when I was first there in November 05. They were happy for me to be there, and continue being there, staying there for as long as I wanted to.”[55]

 

In re-examination, asked why she did not ask the park managers how long the park would operate for: “I just assumed that I could be there for as long as I wanted. It wasn’t an issue as such.”

 

Asked the basis for her assumption: “Probably from what I’d heard. When I’d to Jim – Bill and Helen in November they’d been there for a few years and were very happy. It looked like a nice place to be so I just assumed it would be there all the time.”

 

Asked if anything said by the park managers founded that assumption:   “When I’d been to the office … they welcomed me and hoped that I’d be happy.  Just by talking to them I assumed that they were there for the long term not short term so yeah it was never thought to ask their plans or how long you know.”

 

“Because they were permanent sites. They were there. They were structures that I had bought and paid for so I just assumed I would be there for as long as I wanted or could be.”[56]

 

Phillip and Patricia Nossiter

 

Site 16

“In about early March 2007, I went to the Park office and I think that I spoke with Sue Nankivell. She told me that there were three sites for sale. She took me around to the first site which we viewed from the outside. When we went to the third site, the owner was present and she and I discussed the sale details.

 

I paid the owner a deposit of $5,000.00. On the 16th of March 2007, I paid the owner the remaining money for the Site and a short time later we moved in. I went to the office and signed the receipt for the purchase. …”. [57]

 

“At no time were (we) informed by the owners or by the Managers that our site was not permanent. At the time of our purchase the owners were fully aware that there was no permanency of tenure and yet they encouraged and allowed the sale to take place and kept that vital information to themselves. Because I was told by Sue Nankivell that there were various sites for sale I understood that the tenure at the Park was permanent.” [58]

 

 

Mrs Nossiter paid the deposit on 3 March 2007 before then going to sign her Tenancy Agreement on 16 March with Mrs Nankivell.[59]

 

Mrs Nossiter eventually conceded, impliedly at least, that no representation as to permanency was made:-

 

“… you didn’t ask anybody at the office to give you any commitment as to how long you could stay at the park did you? - - - We weren’t told we could not … I was told we had to stay at least three months and that that’s where we could live for as long as we wished to.

 

But nobody said that to you, did they? - - - No, because you don’t - - -

 

That’s what you assumed? - - - You don’t go and pay out the money that we paid out just for the hell of it, if you can’t stay there indefinitely.

 

But you never actually asked for any commitment from the landlord, did you? You never raised that matter with the landlord, did you? - - - No, but then they didn’t give us anything else either and say this and this and this and this either. … If it wasn’t permanent, they should have stated that on the day.”

 

Mrs Nossiter’s real complaint was thus that she was not warned about matters known to the plaintiff which might have affected the period during which her weekly tenancy might have lasted.[60] 

 

She ultimately agreed that nothing was said to her amounting to any kind of formal commitment by the plaintiff to allow her to stay forever.[61] She said that she and her husband “hoped” to be able to stay, for some years.  

 

Stephen and Mary-Ann Scott

 

Site 6  

“My husband and I went to see Ms. Lorraine Boehm from Ray White Real Estate who gave us a coloured brochure of the property and informed us of the price of $33,000.[62] .... During our discussions with Lorraine Boehm she said words to the effect that the Park was the “best place to be” and it “was permanent tenure plus being safe and secure.”[63]

 

“We went to the Park Office and spoke to the Park managers, Sue and Dean Nankivell. I informed them that we were purchasing the site and intended moving in in the next couple of weeks. We were told that there was a $315.00 bond plus two weeks rent in advance that we immediately paid. Dean and Sue Nankivell welcomed us to the Park and congratulated us on our purchase. Dean told us that the site was permanent and that the Park was a safe and wonderful place to live. I cannot remember the exact conversation but I was left with the impression that our tenure at the Park was permanent and that for so long as we paid the rent and complied with the lease then we could remain in occupation.”[64]

 

Mr and Mrs Scott signed a Tenancy Agreement dated 21 September 2007 which provided that at the end of the first three months, their lease would be on a week-to-week basis.[65]  

 

Mr and Mrs Scott discussed the purchase of their site with the vendor owners, and with the vendors’ real estate agent. All representations as to how long the Scotts would be allowed to stay were made by the vendors, or by their agent, or by another owner known to the Scotts, and not by the plaintiff’s representatives.[66] 

 

The real estate agent told Mr and Mrs Scott: “the sites are all permanent; they’re permanent sites so you’re here for, as long as you obey the rules, you’re here permanently.”[67]

 

The following evidence is illustrative:

 

“Mrs Scott, … all of the enquiries that you wanted to make to satisfy yourself that you were making the right decision, were made of those owners we’ve talked about?- - - Yes.

 

And then you were also able to confirm and your husband was able to confirm with Ms Boehm, that you wouldn’t be kicked off site?- - - Yes.

 

And on the basis of those reassurances, that information, you were happy to make the commitment to purchase?- - - Absolutely.

 

And this was all made prior to 21 July [corrected to 21 September], before you actually paid the hard cash over, wasn’t it? - - -Yes.” [68]

 

Brian Bird

 

Site 14

Mr Bird purchased site 14 on or about 7 September 2007.

 

“Before I purchased I went to the office where I spoke to the Park Manager, Dean Nankivell. …. I signed a lease and paid a bond of $315.00. He told me that I had to pay the weekly fees to maintain the property and for water charges. I said that I wanted to stay long term and retire at the Park. He did not tell me that the park did not comply with the Fire Regulations or that the Park was going to close. I was left with the impression I was a permanent resident and could retire at the Park.”[69]

In cross-examination, Mr Bird explained that he did not go to see the Park Manager until 14 September 2007, after he had purchased the caravan.

 

“Okay. Now, Mr Bird, so we know from that bank cheque that the deal with Mr Gillie [the vendor] was agreed and all paid for by 7 September?- - - That’s right.

 

Could you then, please, turn to [exhibit BFP1] to your affidavit … the Tenancy Agreement?—Yes.

 

And that’s the agreement that you signed on – it says 14 September 2007?--- Yes.

 

Okay. So that was the day that you first approached the site office and spoke to one of the Nankivells?---At the time nobody told me about the agreement that you had to do. I bought the caravan and then I went and seen them. … I didn’t think there would be any problems with the references that I’ve had.

 

And in fact there wasn’t, was there?--- No.

 

So this was just a formality as far as you were concerned?--- As far as I was concerned, yes.”[70]

 

Deborah Gasson

 

Site 7  

Ms Gasson was introduced to her site by a real estate agent:-

 

“In March 2009, I decided to try and buy my own home. … I saw an advertisement in the Property for Sale section  of the Centralian Advocate placed by … The Professionals, indicating that site 7 Sienna Apartment Complex was for sale. It was described in a Professionals brochure given to me as a ‘Permanent site at the lovely Sienna Village. …’ [71]

 

“After walking through the property I spoke to the selling agent … and asked why the owners were selling such a lovely home. She told me that they were separating and they needed a quick sale. I was given the impression that tenure was permanent.”

 

“At some time during the negotiation process and prior to purchasing site 7, I telephoned Dean Nankivell who was a Manager at the Park. … I spoke to Dean who went through the tenancy agreement with me over the telephone. Dean led me to believe that it was a permanent site and that I could only be removed if I broke the tenancy agreement rules or failed to pay the rent. …

 

He did not inform me that there were noncompliance issues or that my tenancy was not permanent. I cannot remember exactly what was said but I was left with the impression that I was to be a permanent resident and that this was an investment that I could sell in the future.”[72]

 

Ms Gasson was heavily influenced by the real estate agent’s representations. She made an offer to purchase on her first viewing of the improvements on site 7.

 

It would appear that Ms Gasson signed the purchase contract and paid the deposit of $6,000 before she first spoke to Dean Nankivell.  

 

When she contacted Dean Nankivell, he faxed her a copy of the Tenancy Agreement and they discussed it by phone. Given her earlier discussions with the real estate agent about permanency, it seemed strange to her that the Tenancy Agreement referred to the lease being on a week to week basis, but she did not think to ask the plaintiff’s manager exactly what commitment the plaintiff was prepared to make in terms of tenure.[73]  

 

Ms Gasson relied primarily on the agent’s advertisement: “I took the permanent site advertisement at face value.”[74] 

 

 

Mueller Nominees/

Phillip Mueller

 

Site 17   

Ute Pypke, a director of Mueller Nominees Pty Ltd and the mother of Phillip Mueller, first became aware that site 17 was for sale as a result of reading a newspaper advertisement in the Centralian Advocate in April 2009.

 

She negotiated the sale/purchase price of $65,000 with Mr Cartwright, the vendor.

 

Ms Pypke wrote a cheque for $65,000 in favour of the vendor on 2 May 2009. The amount of that cheque was debited to the account of Mueller Nominees Pty Ltd on 8 May 2009.[75]  

 

“After negotiating a purchase price, I went into the office at the Park with my son … and spoke to a Manager of the Park, Sue Nankivell on the following Monday. Phillip completed some forms and they told me that they knew that I would be the new owner of site 17. I was told that I was responsible to pay rent for the upkeep of the Park. …”.[76]

 

Phillip Mueller was the signatory and tenant under the Tenancy Agreement, which was dated 5 May 2009.[77]  

 

Ms Pypke handed over the cheque to Mr Cartwright on 3 May 2009:

 

“And so as far as you were concerned the deal was finished, that was done, you were buying [the permanently fixed caravan and other structures] …?--- That’s right, yes.”[78]

 

At the time Ms Pypke paid the purchase price, she had not spoken to anyone “from the Park”, in the context, meaning anyone from the plaintiff.[79] 

 

“It was important for you in making the decision to purchase, that you’d been reassured by Mr Cartwright that the tenure was permanent, wasn’t it?---Yes and he told me that permanent … could be meaning long-term, and I accepted on the long term. … I would have been quite happy if I could have stayed for a few years. …

 

“And so twelve years would have been fine?---Yes, yes.

 

You would have thought that was a fair deal?---Yes.

 

And four years?---No, not.”[80]  

 

 

[50]     The defendants’ attempt to give particular significance to the word “permanent” is quite unrealistic.  True, the plaintiff’s managers probably used the word “permanent” in discussions with tenants, including new tenants (and with some new tenants, before they purchased their sites).  The plaintiff’s managers probably referred to the sites as “permanent sites”, and/or to the residents as “permanent residents”.  However, I am satisfied that the expression was used and understood in the sense described by me in par [5] above, consistent with the Park being a  caravan park with permanent sites only, to be distinguished from a caravan park or tourist park with overnight or short-term occupancy sites. Notwithstanding the many assertions by the defendants to the effect that ‘I was led to believe’ or ‘I was left with the impression’ (that tenure was permanent), I have concluded that the only ‘permanency’ agreed to by the plaintiff (and then only with some of the defendants) was the three-month minimum period of occupancy which the plaintiff required of those who were to become tenants of the Park.[81] 

[51]     As mentioned in par [45] above, most of the causes of action pleaded by the defendants as part of their counterclaims rely on the “representation as to permanency”, alleged to have been made by the plaintiff to each defendant, before the purchase of that defendant’s site.  The “representation as to permanency” was said to comprise a combination of words allegedly said (1) to the effect that each defendant purchaser would be able to reside at the Park on a permanent basis, and (2) that if the purchaser wished to vacate at some future time then there would be no impediment to “the Fixture being on sold to an incoming occupant.”[82]  

[52]     However, given my findings in par [50], it follows that there was no express representation as to permanency in the sense contended for by the defendants. 

[53]     The defendants contend in the alternative that the “representation as to permanency” should be implied because it is all of the following: reasonable and equitable; necessary to give business efficacy to the tenancy agreement; so obvious that ‘it goes without saying’; capable of clear expression; and does not contradict any express term of the tenancy agreement.[83]  

[54]     In my opinion, the “representation as to permanency” may be capable of clear expression as a matter of language (as pleaded[84]), but its legal meaning is obscure and it is unclear why the representation is said to give rise to a life tenancy.  I accept the plaintiff’s submission that the use of the word “permanent” in reference to a tenant’s tenure begs, not answers, the question as to the nature and extent of the tenure actually granted.[85]  

[55]     The “representation as to permanency” fails the remaining tests for implication of a term.  It is not reasonable or equitable.  On the contrary, it would be most unreasonable to imply a term as to “permanency” in the sense the defendants now contend for.  The consequence would be that, although the defendants bound themselves to the plaintiff only as tenants from week to week, the plaintiff somehow bound itself to a life tenancy in favour of each of the defendants!  Further, I accept the plaintiff’s submission that, even if the use of the word “permanent” were ambiguous, absent further inquiry no reasonable person could reasonably have assumed that a life interest in land (or other long term interest in land) had been or would be granted (particularly, I add, in the absence of relevant consideration).

[56]     Moreover, the “representation as to permanency” is not necessary to give business efficacy to the tenancy agreements which, after the initial three months (if applicable), became weekly periodic tenancies.  The “representation as to permanency” is not so obvious ‘it goes without saying’, because it requires a distortion of the meaning of the word “permanent” as I have found the plaintiff and the defendants understood it.  Finally, in the case of most defendants – those subject to written tenancy agreements – it contradicts the express provisions as to a weekly tenancy.  

[57]     I therefore reject the defendants’ case that there was an express or implied “representation as to permanency” which created a life tenancy[86] in favour of any of the defendants.

The estoppel claim

[58]     The defendants’ estoppel claim is pleaded in paragraph 7(ii) of the Third Defence as follows:-

“In the alternative, if any valid agreements existed between the Plaintiff and the Defendants, the Plaintiff is estopped from terminating any of the Tenancy Agreements without compensation for the Fixture related expenses because of the representation as to the (sic) permanency.” 

[59]     The estoppel claim is pleaded more fully in paragraph 19 of the Third Defence and Counterclaim.  The claim is based on alleged representations, reliance and detriment.  It is contended on behalf of most of the defendants that they satisfy the Waltons v Maher “six-point checklist”[87] for establishing an equitable estoppel against the plaintiff.  The submission is not made on behalf of Linda Mansell, Brian Bird or Deborah Gasson,[88] but that may be an oversight, and I will assume for present purposes that all defendants (including the non-defendant claimant) maintain a claim in equitable estoppel as pleaded.  

[60]     The first problem for the estoppel claim is that it depends on the defendants’ case that there was an express or implied “representation as to permanency”.  I have concluded that there was not. 

[61]     The second problem for the estoppel claim is that it depends not only on the “representation as to permanency” but also on several other alleged representations, pleaded in paragraph 10 of the Counterclaim, including that the “Fixtures” (defined as permanent dwellings and subsequent renovations) would over time increase in capital value and would be onsold to future occupants of the sites.  There is no evidence to suggest that these alleged representations were made by or on behalf of the plaintiff to any of the defendants.  

[62]     The third problem for the estoppel claim, to the extent it is based on the criteria for establishing an equitable estoppel stated by Brennan J in Waltons Stores (Interstate) Ltd v Maher, is that the defendants must prove that they “assumed that a particular legal relationship then existed between [them and the plaintiff] or expected that a particular legal relationship would exist between them”, and that [the plaintiff] “has induced [the defendants] to adopt that assumption or expectation”.  The defendants’ pleading[89] describes the assumption or expectation in these terms:

“By making the Representations the Plaintiff created in the Defendants an assumption or expectation that if they purchased the Fixtures that they would be able to occupy the Premises and to reside in the Park permanently and to onsell their Fixtures to an incoming occupant of the Park and further that there was no legal impediment to their ongoing occupation …”  

[63]      However, as I have found, the plaintiff did not make the “representation as to permanency” or the other alleged representations pleaded in paragraph 10 of the Counterclaim.  The plaintiff did not induce the alleged assumption or expectation on the part of the defendants that they would be able to reside in the Park “permanently” (whether that meant as life tenants or some other form of unspecified long-term occupancy).

[64]     I therefore reject the defendants’ case that there was an estoppel which required the plaintiff to compensate them or any of them “for the Fixture related expenses” or which would have prevented the plaintiff from treating any of the defendants as other than weekly tenants after their initial three-month terms had expired.  In the absence of proof of relevant representations, and reliance thereon, the defendants are not entitled to payment of compensation for their alleged detriment.[90] 

The claims under the Residential Tenancies Act

[65]     The defendants’ claims for compensation and damages pursuant to s 122 Residential Tenancies Act (“the RTA”) are not straightforward.

[66]     The starting point identified by Mr Britten-Jones of counsel is s 47 RTA, which creates an offence for a landlord to enter into a tenancy agreement unless the premises and ancillary property “to which the agreement relates” are (a) habitable and (b) meet all health and safety requirements specified under an Act that apply to residential premises or ancillary property.

[67]     A “tenancy agreement” is defined as “an agreement under which a person grants to another person for valuable consideration a right … to occupy premises for the purpose of residency.”  The reference to “premises” means “residential premises or part of residential premises to which a tenancy agreement relates …”.  The definition of “residential premises” expressly includes “a caravan intended for occupation as a place of residence.”[91] 

[68]     The defendants plead that the improvements (which they refer to as “the Fixtures”) to all of the sites occupied by them comprised “converted caravans and/or cabins with annexes”.[92]  I referred to those improvements in par [12] above.  The defendants allege that the improvements were affixed to the plaintiff’s land, and not merely resting on their own weight; that they were incapable of being moved without demolition; and they had never been moved or severed from the plaintiff’s land.  Therefore, on the defendants’ case, the improvements were fixtures and not chattels (notwithstanding that they had been purportedly bought and sold respectively by one or more lots of incoming and outgoing owners). 

[69]     As a consequence of the improvements being fixtures, the defendants argue that the tenancy agreements entered into by them with the plaintiff gave them a right to occupy premises – residential premises – and not just a right to occupy the vacant land on which those residential premises were erected.

[70]     The defendants rely on the decision of the New South Wales Court of Appeal in May v Ceedive Pty Ltd[93] in support of their case that they were tenants of residential premises and not tenants of vacant land.  The critical question for the primary judge and for the Court of Appeal in that case was whether the appellant’s cottage was a fixture.  The appellant, Mr May, had purchased a two-bedroom house, one of the workers’ cottages in a residential estate established by a coal mining company in the Lithgow Valley in the early twentieth century.  The cottage was built in the years 1910-1915.  It was of solid brick construction.  It was incapable of being moved without demolition.  It was not constructed as a demountable or temporary structure.  Mr May purchased the cottage in 1969, and he understood that he was buying the house only, and not the land on which the house stood.[94]  Mr May then leased (or underleased) the land for a ground rent.  He carried out various repairs and improvements to his cottage over the years he lived there.  He paid rental to a succession of mining companies which owned the land on which his cottage stood.  The respondent, Ceedive Pty Ltd, became the owner of the land in 1999.  In 2002, after Mr May had failed to pay the increased rent set by Ceedive, the company gave notice terminating Mr May’s ground lease for non-payment of rent.  Mr May claimed that he was a protected tenant of “prescribed premises” under the Landlord and Tenant (Amendment) Act 1948 (NSW), and that as a result he enjoyed the protection of the Act, both against increases in rent beyond a fair rent and against termination other than in accordance with the Act.

[71]     Mr May’s claim to be a protected tenant depended on his cottage being a fixture.  The conclusion of the primary judge was that Mr May’s cottage was not a fixture but a chattel, and that the underlease was of bare land.  There was thus no lease of “prescribed premises” within the Act, and Mr May was held to fall outside the Act’s protection.  

[72]     On appeal, it was held that Mr May’s cottage was a fixture.  It was held that all the evidence pointed to the house being affixed with the intent that it remain in position permanently or for an indefinite or substantial period, from at least since 1910.  No predecessor in title to Mr May had purported to sever or remove it, nor had Mr May.[95]  Mr May’s subjective belief (in 1969) that he was purchasing the house did not alter the position at law, because it was not Mr May who had originally affixed the cottage to the land but his predecessor more than 50 years previously.  The position at law was that the cottage remained the property of the registered proprietor of the land.[96] 

[73]     The legal principles and the authorities in relation to fixtures were comprehensively reviewed by Conti J in National Australia Bank Ltd v Blacker & Anor (2000) 104 FCR 288 at 292-296.[97]  His Honour explained at par [10] that whether an item has become a fixture depends essentially upon the objective intention with which an item is put in place and fixed to land.  The objective intention is generally determined by a consideration of (1) the degree of annexation and (2) the object of annexation. 

[74]     The Northern Territory Court of Appeal has held that objective intention is determined “from such facts and circumstances that are apparent for all to see.”[98] 

[75]     Although both the degree of annexation and the object of annexation are relevant, neither is conclusive.[99]  Chattels which have been securely fixed to premises may nevertheless not be fixtures, as was the case with heavy printing presses attached by nuts and bolts to a concrete foundation in the basement of a building in Attorney-General of the Commonwealth of Australia v R T Co Pty Ltd (No. 2).[100]  Chattels resting on their own weight may be fixtures, as Barton J explained in Reid v Smith (1906) 3 CLR 656 at 670-671, “… a structure may now be held to be annexed to the soil merely by its own weight.”

[76]     The plaintiff relies on N H Dunn Pty Ltd v L M Ericsson Pty Ltd [101] for the several propositions that whether an item has become a fixture depends on the period of time for which the chattel was to be in position, the degree of annexation, what was to be done with it, the function to be served by its annexation and statements (if any) made by the landlord and tenant as whether the chattel shall or shall not be part of the realty.

[77]     In N H Dunn Pty Ltd v L M Ericsson Pty Ltd, Dunn agreed to hire a PABX phone system to the lessee of part of a commercial building owned by Ericsson.  Dunn then installed the PABX.  Under the hiring agreement the PABX remained Dunn’s property and could be removed on termination of the hiring agreement.  The period of hire was 10 years but the tenant vacated the premises after only four years, leaving the PABX behind.  Ericsson argued that the component items of the PABX system were affixed to the building, and were therefore part of the realty.  Dunn argued that, notwithstanding that they had been annexed to the realty, the items had never become part of it; in the alternative, if they had become part of the realty, the lessee (and Dunn through it) was entitled to remove them.  The Court of Appeal acknowledged that the intention of Dunn and the lessee, actual or inferred, was that the items should remain in position for an indefinite and substantial period and not merely for some temporary purpose.  However, the Court held that the PABX system was not a fixture.  The degree of annexation was small – the items could be detached with little difficulty and expense.  The purpose of their annexation to the freehold was to “steady the chattels and prevent damage or inconvenience from their moving while in use”.  The items were not “upon the land” for the better enjoyment of the land.  The “slight fixing” was for enjoyment of the PABX as a chattel, not for the better enjoyment of the land.[102]  

[78]     Often the decided cases are complicated by the identity of the rival claimants, whether vendor and purchaser, mortgagor and mortgagee, landlord and tenant, landlord and chattel mortgagee.  The question is often not whether a chattel has become a fixture but whether one party has the right to retain it as part of the freehold, or the other party the right to remove it.  So-called “tenants’ fixtures” may be removed during the term of a lease by the tenant, but they are fixtures unless and until removed:

“Though removable tenants’ fixtures may during the term be detached and become chattels belonging to the tenant, yet the better opinion appears to be that unless and until the tenant exercises his right of removal they form part of the realty… subject to the exercise of the tenant’s right to convert them again into chattels …”.[103] 

[79]     I refer again to par [69] above.  In order to make good their claims for compensation and damages pursuant to s 122 RTA, the defendants first need to establish that the improvements on the sites occupied by them were fixtures, and consequently that the tenancy agreements entered into by them gave them a right to occupy residential premises, and not simply a right to occupy the vacant land comprising their site at the Park. 

[80]     Where an item of property is affixed to the land to any extent, aside from resting on its own weight, it is presumed to be a fixture, and the burden of proof lies upon the party asserting that it is not a fixture.  Conversely, where an item of property is not affixed to the land but merely rests on its own weight, it is presumed to be a chattel and the party asserting that it is instead a fixture bears the onus of proof.[104]

[81]     While it is possible to state where the onus lies as a matter of law, the physical circumstances ‘on the ground’ in the Park do not permit easy judgments based on whether the defendants’ improvements rested on their own weight or otherwise.  Indeed, given that a chattel or structure resting on its own weight may still be a fixture, the Fire and Rescue reference to “unauthorised structures associated with permanent type temporary residences (caravans) within the park” highlights very well the difficulties in classifying the hybrid structures at the Park. 

[82]     With one exception,[105] the defendants allege that their property comprised or included a caravan on blocks.  That suggests that the caravans were resting on their own weight.  However, all caravans had one or more annexes.  Often those annexes were metal or wood-framed structures fixed to the land on which they stood, many with concrete slab floors.  They were fixed improvements.  They were used for living areas and other domestic uses ancillary to the caravans.  Some had solid walls; some were open, depending on the purpose.  Generally, they could not be removed without significant damage resulting.  In most cases, they enclosed or were attached to caravans, with the result that the caravans, even though they may have rested on blocks, were ‘locked in’ and difficult to separate from the fixed improvements.  Some caravans had been structurally altered.  In one case, the side of a caravan had been removed to enable it to be “fully amalgamated with the ground level annex”.[106]  In another, the caravan had been “opened along one side to provide access to and from the permanently adjoined annex.”[107]  

[83]     Expert opinion was that Peter Derrick’s “cabin”, and the caravans of each of Linda Mansell, Jacqui Koerner, Phillip and Patricia Nossiter, and Deborah Gasson were “substantially fixed to site and could not be removed without significant cost or damage resulting.”  Those four caravans were connected to or integrated with fixed improvements in such a way and/or to such an extent that separation was not practically possible without demolition. Expert opinion was that the five other defendants’ caravans could be removed, without significant damage resulting, but that “some modification” would have been required in each case.  

[84]     The plaintiff submits that a consideration of the following circumstances should lead to the conclusion that the defendants’ improvements were not fixtures.  Those circumstances were: (1) that sale arrangements between the outgoing and incoming tenants took place without the involvement of the plaintiff (and that the plaintiff was generally unaware of such sale arrangements); (2) that the tenant vendors and purchasers treated the improvements as belonging exclusively to the tenant (to the exclusion of the plaintiff landlord); (3) that past tenants had removed their improvements from sites at the Park from time to time, without reference to the plaintiff; (4) that all tenants had a periodic tenancy only; (5) that the temporary, indeterminate and possibly short duration of the tenancies of the tenants who erected the improvements shows that they were not fixtures; (6) that the type of construction of the improvements, in most cases having been built by non-professionals, and the fact that there were no permits to build or occupy, was contrary to the existence of any  (objective) intention that they should be fixtures; (7) that much of the defendants’ improvements consisted of chattels, that is, caravans, which were "central to the tenant’s use of the land", which rested on the land by their own weight and which could be removed; (8) that to the extent that some improvements (for example, annexes or roofing over) were affixed to the land, the improvements were for the better enjoyment of the tenants’ caravans (and not of the land as such, the same distinction made in N H Dunn [108]).[109]

[85]     Circumstances (1), (2) and (3) in par [84] are legally irrelevant in relation to determining the objective intention with which the improvements were fixed to the land.[110]  Further as to circumstance (3), the fact that past tenants had removed improvements from sites in the park, even if sufficient detail of the nature of such improvements and the fact of and the extent to which they had been fixed were established on the evidence (and they have not), is not inconsistent with their being fixtures which the past tenants had the right to remove during the term of their tenancies but which were nonetheless fixtures unless and until removed.[111]

[86]     As to circumstance (8) in par [84], it is artificial in the present case to suggest that any fixed improvements were for the better enjoyment of the caravans and not of the land.  The caravans were big, habitable chattels, placed on the land.  To enjoy the caravans (and all the benefits of residing in such caravans) was also to enjoy the land.  The caravan annexes and appurtenant structures in the present case were of a very different nature to the PABX system in N H Dunn, which comprised communications equipment the components which were the subject of "slight fixing" to keep them steady and in place while in use.  In the present case there may have been more than one object of ‘better enjoyment’: land and caravan, but I am satisfied that the defendants’ fixed improvements were for the better enjoyment of the land to which they were affixed, and not only the caravans.  

[87]     As to circumstance (7) in par [84], it is true that (save for the case of the ninth defendant) caravans were the principal or at least a substantial component of each defendant’s improvements (and hence "central to the tenant’s use of the land", as submitted) and that the caravans rested on the land by their own weight.  However, as explained in par [82] and par [83], many of the caravans could not be removed without significant damage resulting, and even though they may have rested on blocks, many were ‘locked in’ and difficult to separate from the fixed improvements.

[88]     However, circumstances (4), (5) and (6) in par [84] in my view count significantly against any of the defendants’ improvements being fixtures.  Although I do not necessarily agree that the defendants’ improvements were “in most cases built by non-professionals”, the following facts: (1) the general absence of permits to build or occupy any of the structures, (2) the limited terms created by the periodic tenancy agreements, (3) the nature of the lightweight construction  of the structures (unlike the miner’s cottage in Ceedive) and (4) their location in a caravan park setting, combine to nullify any objective intention that the improvements should become fixtures, irrespective of the subjective intention of individual tenants (and that includes the defendants as well as their ‘predecessors in title’) at the time they carried out improvements.  I therefore find that the defendants’ improvements were not fixtures.

[89]     If I am wrong that circumstances (4), (5) and (6) in par [84], taken with the additional matters set out by me in par [88], are a complete answer to the defendants’ case that the improvements on all of the sites occupied by them were fixtures, I make the findings in the Table below as to the nature (fixtures or otherwise) of the defendants’ improvements in the event that circumstances (4), (5) and (6) in par [84] are not taken into account, based on the evidence (including photographic evidence) of each of the defendants and the evidence contained in the valuers’ reports (Exhibit 31).  I also refer to my summary and analysis in par [82] and par [83] above.

 

Party/site

 

Description of improvements

 

 

Findings - fixtures or not 

 

Peter Derrick -

Site 11

 

 

“… improvements comprised a large fully lined open plan room of around 48 square metres or thereabouts. The room provided a full kitchen with built-in cupboards providing a partial room partition to a lounge / living / bedroom area. The structure was of metal clad construction with concrete flooring and tiled floor coverings.  … Other improvements included attached pergola areas front and rear, an attached double carport of steel frame iron roof construction (25 square metres or thereabouts) and 2 garden sheds. The site … is boundary fenced to 3 sides. The ablution block is situated to the rear of the site and has a garden shed attached.

 

“The structures are substantially fixed to site and could not be removed without significant cost or damage resulting. In terms of normal valuation protocol we consider these structures to be fixtures. …”.

 

 

All improvements were fixtures

 

Rose Habusta -

Site 9

 

 

“ … improvements comprised a caravan and two annexes adjoined. The caravan contains a bedroom with wall a/c unit, additional open room and recently added internal ablutions with shower, w/c and vanity. The first annex contains a full kitchen and living room; and the second annex contains a 2nd kitchenette area adjoining the park ablutions, and a store room. The annex is constructed with metal clad external walls and roof sheets over a concrete slab, the annex walls are typically lined and there is wall mounted air conditioning. 

 

“Attached to the rear and sides of the dwelling are timber frame canopies with iron roof sheets (currently being dismantled and removed) and at the front of the dwelling is a 3 car space timber frame iron roof carport canopies over gravel base. … The annex and residual structures are substantially fixed to site and could not be removed without significant cost or damage resulting. In terms of normal valuation protocol we consider these structures to be fixtures. With some modification the caravan could be removed. …”.

 

All improvements were fixtures (including caravan)

 

Angela Clark - Site 30

 

 

 

“ …improvements comprised a stumped caravan and an annex. The caravan contains a basic small kitchenette / meals area with single sink, gas stove and laminate cupboards and benchtops; and small bedroom at one end. The annex has metal clad external walls, lined internal walls and ceiling, and carpet floor coverings over concrete slab. The annex comprises a single living room and a bedroom. There are 2 wall mounted a/c units to the dwelling and a ceiling fan to the living room.

 

Externally there is a timber frame iron roof carport canopy over concrete base, and attached front / side timber frame iron and Perspex roof canopies over paved base. 

 

The annex and residual structures are substantially fixed to site and could not be removed without significant cost or damage resulting. In tens of normal valuation protocol we consider these structures to be fixtures. With some modification the caravan could be removed. ….”.

 

 

Improvements  were fixtures (except for caravan)

 

Rick Morley - Site 35

 

 

 

“… improvements comprised a stumped caravan and an attached annex. The caravan contains a basic small bedroom, kitchenette and meals area; and the annex has a living room and smaller store room / study. The annex is constructed with metal clad external walls and roof sheets over a concrete slab, the annex walls are typically lined, there is wall mounted air conditioning to the annex and a split system air conditioner to the van kitchen. There is a steel frame metal roof canopy over the caravan and annex and side and rear surrounds.

 

The canopy covers the area between the dwelling and the park ablutions, forms a double length carport canopy to the other side, and covers an extensive area to the rear of the dwelling with a metal frame constructed for an additional room and full concrete base. ….

 

The annex and residual structures are substantially fixed to site and could not be removed without significant cost or damage resulting. In terms of normal valuation protocol we consider these structures to be fixtures. With some modification the caravan could be removed. …”.

 

 

 

Improvements  were fixtures (except for caravan)

 

Linda Mansell -Site 15

 

 

“the residual structure of a caravan that has been fully amalgamated with a ground level annex. The caravan provides a bedroom and lounge area of around 15 square metres or thereabouts. The side of the caravan has been removed to fully integrate the space with the ground level annex. The fully lined annex provides a full timber kitchen with ancillary cupboards and breakfast bar. There are tiled floor coverings and a large central lounge/dining area. These improvements are of a high quality. An open fire, gas stove and roof mounted air-conditioner have been installed. 

 

“Other improvements included the ablution block which has been added to, to provide a large adjoining air-conditioned bedroom of iron clad construction (12 square metres or thereabouts). There are several shade cloth covered areas adjoining the structures and a well presented rock garden incorporating a spa. There is a garden shed of iron clad construction. The residual site is paved and there is a 60 square metre metal clad workshop / garage area attached to the front of the main structure. This area provides secured access to the site which is fully boundary fenced with a variety of materials.

 

“These structures were substantially fixed to site and could not be removed without significant cost or damage resulting. …”. 

 

 

All improvements were fixtures (including caravan)

 

Jacqui Koerner  Site 3

 

 

“…. a demountable style fully metal clad residence on concrete slab which appears to have been converted from an original caravan and annex.  The dwelling provides 2 bedrooms, a lounge room, dining room, kitchen and external laundry. …  Ablutions are provided by external access to the standard park ablutions and there is an external laundry with canopy over.  

 

The dwelling has a front porch, attached rear and front verandahs and a single detached metal roof carport. The site is fully fenced and has concrete surrounds and driveway.

 

The full enclosure/dwelling and associated structures are substantially fixed to site and could not be removed without significant cost or damage resulting.  In terms of normal valuation protocol we consider these structures to be fixtures.”

 

 

All improvements were fixtures (including caravan)

 

Phillip and Patricia Nossiter  - Site 16

 

 

 

“… a caravan with roof mounted air-conditioner of around 22.5 square metres, the caravan had the wheels removed and had been opened along one side to provide access to and from the permanently adjoined annex. It is unlikely that the caravan would be functional if removed. The annex was fully lined with power available and had an area of some 24 square metres; the annex was set on stumps and had split air-conditioning and a log burner installed.  Accommodation included a bathroom, kitchen and dining room in the caravan area and an open plan lounge with bedroom in the annex.  There was a decked verandah area of around 14 square metres and a metal / iron roofed overhang verandah (15 square metres) with concrete paving under. The caravan and annex structure was wholly covered by a steel framed structure with metal roof.

 

Other improvements included a steel framed metal roofed double carport of around 30 square metres, substantial site paving, good quality landscaping and seclusion/boundary fencing, a metal clad garden shed and the ablution block which was situated off the verandah overhang.

 

These structures were substantially fixed to site and could not be removed without significant cost or damage resulting. …. ”.

 

 

All improvements were fixtures (including caravan)

 

Stephen and Mary-Ann Scott - Site 6

 

 

 

“… a caravan of around 20 square metres and which provided standard bedrooms with central kitchen area. Adjoining the Caravan was a ground level annex of insulated panel construction. To the rear of the structure is a verandah/laundry area that incorporates access to the ablution facility.  The annex and residual structures are substantially fixed to site and could not be removed without significant cost or damage resulting.  In terms of normal valuation protocol we consider these structures to be fixtures.  With some modification the caravan may be able to be removed. 

 

 

Improvements  were fixtures (except for caravan)

 

Brian Bird - Site 14

 

 

“… a fully renovated and upgraded caravan of around 14 square metres or thereabouts which provided a bedroom and kitchenette.  RAC units were provided. There was a fully lined integrated annex with concrete flooring; of open plan design with an area of around 23 square metres, the annex incorporated access to the ablution block. The structure was in very good condition at inspection having been recently upgraded. The caravan and annex were covered by a steel framed, iron roofed structure which provided some external verandah area (10 square metres). The site was boundary fenced and neatly presented with some site paving and lawned areas. The annex was substantially fixed to site and could not be removed without significant cost or damage resulting. In terms of normal valuation protocol we consider this structure to be a fixture The caravan still had wheels attached and with some modification may have been able to be removed. …”. 

 

 

Improvements  were fixtures (except for caravan)

 

Deborah Gasson -Site 7

 

 

 

“… improvements were substantial and comprised a centrally located caravan (22 square metres) fully integrated into the main structure with substantial annexed areas (93 square metres), the caravan has been modified and provides a kitchen / lounge and bedroom. The annex area is fully lined internally; it is at ground level and is various construction.  Accommodation provided includes 2 further bedrooms, a full kitchen / laundry / dining area and hall that incorporates the ablution block, which has been upgraded. Further accommodation includes a large open plan lounge area. The annex has concrete flooring with various floor coverings, Split system and RAC air-conditioning is provided. Other improvements include an attached carport (30 square metres) and lockup store (7 square metres). … The annex and residual structures are substantially fixed to site and could not be removed without significant cost or damage resulting. In terms of normal valuation protocol we consider these structures to be fixtures. “

 

All improvements were fixtures (including caravan)

 

Mueller Nominees/

Phillip Mueller -  Site 17

 

 

 

“… improvements comprised a small centrally enclosed caravan which has been modified to provide a bedroom, and adjoining annexes on 3 sides which provide an additional bedroom, lounge, kitchen / meals and a study / rumpus room. The annex is constructed with metal clad external walls and roof sheets over a concrete slab. The kitchen is relatively modem with laminate cupboards and benchtops; an under bench oven; electric cooktop and a stainless steel sink. The annex walls are typically lined and there is wall mounted air conditioning. Floor coverings are carpet and ceramic tile.

 

“ Attached to the rear of the dwelling is a metal roof canopy which covers the paved courtyard area. There is another metal roof canopy between the dwelling and ablution facility with paved and concrete base.  There is a store shed situated near to the ablution facility, and adjoining the front of the dwelling is a steel frame metal roof carport canopy with gravel base.

 

“The annex and residual structures are substantially fixed to site and could not be removed without significant cost or damage resulting. In terms of normal valuation protocol we consider these structures to be fixtures. With some modification the caravan could be removed. ….”.

 

 

All improvements were fixtures (including caravan)

 

[90]     The reason for my finding that the caravans on the sites occupied by Angela Clark, Rick Morley, Stephen and Mary-Ann Scott and Brian Bird were not fixtures is that they were resting on their own weight, as were the caravans of all defendants (except Peter Derrick), but in circumstances where they were not connected to or integrated with fixed improvements in such a way and/or to such an extent to make separation practically impossible.  In addition, Brian Bird’s caravan still had wheels attached.[112] 

[91]     The effect of my finding in par [88] is that none of the defendants’ improvements were fixtures.  It therefore follows that under the tenancy agreements entered into by the defendants, even allowing for the presence of the ablution blocks on each site (which the plaintiff concedes were ‘landlord’s fixtures’), none of the defendants were given the right to occupy residential premises, as distinct from the right to occupy vacant land comprising each defendant’s site at the Park.  The defendants’ claims for compensation and damages pursuant to s 122 RTA must therefore fail.  Notwithstanding this, I shall deal with those claims in the event that I have erred to this point in finding that none of the defendants had the right to occupy residential premises under their tenancy agreements.  For this purpose I will assume that the defendants’ converted caravans and/or cabins with annexes (however described) were, for the purposes of s 47 RTA, “the premises to which the [tenancy] agreement related.”

[92]     The defendants argue that none of their premises met all the safety requirements applicable to residential premises.  There was a general breach of Fire and Emergency Regulation 12(1) constituted by the improvements on each site not having the required separation from one another and/or the improvements being closer than 3 metres to the external boundary of the Park.  This is made out by reference to the Fire and Rescue letter extracted in par [21] above.

[93]     The consequence, on the defendants’ case, was that the plaintiff entered into tenancy agreements with each of the defendants in specific breach of s 47(b) RTA.[113]  The premises in each case did not meet “all … safety requirements specified under an Act.”  The defendants argue that the plaintiff, by entering into a tenancy agreement with each defendant in circumstances where such ‘entry into’ was an offence contrary to s 47 RTA, “failed to comply with an obligation under [the RTA] relating to the tenancy agreement” in each case.  The defendants then invoke s 122 RTA as a statutory provision entitling them to recovery of compensation.

[94]     The act which is rendered illegal under s 47 RTA is for a landlord to enter into a tenancy agreement in circumstances, inter alia, where the relevant premises and ancillary property do not meet all applicable statutory health and safety requirements.  The section is a criminal provision which creates an offence.  The section does not, relevantly, create “an obligation under [the RTA] relating to the tenancy agreement”, within the meaning of s 122(1)(a) RTA.  There are many obligations imposed under the RTA on parties to tenancy agreements, on both landlords and tenants.  However, those obligations are imposed by the incorporation of terms into tenancy agreements under various provisions of the RTA.  So for example: s 48(1) RTA provides that it is a term of a tenancy agreement that the landlord must ensure that the premises and ancillary property meet all applicable statutory health and safety requirements; s 49(1) RTA provides that it is a term of a tenancy agreement that the landlord will take reasonable steps to provide and maintain the locks and other security devices necessary to ensure the premises and ancillary property are reasonably secure; and s 57(1)(b) provides that it is a term of a tenancy agreement that the landlord must maintain the premises and ancillary property in a reasonable state of repair, having regard to their age, character and prospective life.  There are many other examples in the RTA of statutory implication of terms.[114]  

[95]     I interpret the words in s 122(1)(a) RTA: “the other party has failed to comply with the agreement …” to refer to a non-compliance with the express terms of the tenancy agreement, and the words “… or an obligation under this Act relating to the tenancy agreement” to refer to any obligation incorporated into the tenancy agreement by the RTA, as referred to in the previous paragraph.

[96]     My interpretation is consistent with the Commissioner’s essentially civil jurisdiction to determine applications and make orders for compensation.  Further, my interpretation is supported by s 122(4) RTA, which reads as follows:

“If a party to a tenancy agreement is found guilty of an offence against this Act by a court, that court or another court may, on the application of the other party to the agreement, order the person convicted to pay to the applicant compensation for any loss or damage suffered by the applicant because of the commission of the offence.” 

[97]     An order for compensation for any loss or damage suffered by an applicant because of the commission of a criminal offence contrary to a provision of the RTA thus depends on the offender being found guilty, by a court.  The jurisdiction to order compensation is then vested in a court, whether the court which found the offender guilty or another court.  The Commissioner has no role in relation to such matters.  

[98]     It is not appropriate for this Court to determine in a civil case whether the plaintiff committed multiple offences against s 47 RTA by entering into tenancy agreements with each of the defendants.  Nor can this Court in its civil jurisdiction find a party guilty of a criminal offence.  In the absence of a relevant finding or findings of guilt, the defendants have no cause of action and no entitlement to compensation against the plaintiff under s 122 RTA read with s 47 RTA.

[99]     The defendants also rely on the plaintiff’s alleged breach of s 47 RTA to allege that the Tenancy Agreements “that purportedly existed … were illegal and therefore void ab initio.”[115]  That is followed by the further pleading that “each of the Tenancy Agreements was a tenancy for life.”[116]  The usual consequence of a contract or a contractual provision being held ‘void’ is that it cannot be enforced, because being ‘void’ means that it has no legal effect at all.[117]  In relation to the pleading that the tenancy agreements were illegal and therefore void, the defendants have not explained in submissions why the suggested illegality necessarily leads to the tenancy agreements having no legal effect at all and thus being unenforceable.  Nor have the defendants made submissions as to the consequences of the tenancy agreements or relevant parts of those agreements being unenforceable (if in law they were).  The tenancies were terminated well before the matter came on for trial, as a consequence of the order made on 4 July 2011 referred to in par [1] above, if not earlier as a result of one or more notices of termination given by the plaintiff.  It does not appear that the plaintiff seeks to enforce any part of the tenancy agreements; rather its claim for rent or double rent is based on all tenancies having been effectively terminated.  If the tenancy agreements were illegal and therefore void ab initio, as the defendants plead, then the tenancy agreements would have been of no effect at any time and the defendants’ position in 2010 and 2011 would have been the same as if their tenancies had been valid initially but later effectively terminated by the plaintiff (as the plaintiff pleads).  It is unclear on the defendants’ pleadings whether the asserted tenancy for life is said to be the result by default of the tenancy agreement being void ab initio (which I do not understand[118]) or whether the asserted tenancy for life is the result of other pleaded matters such as the alleged representation as to permanency (which I have found was not expressly made and which was not implied).  I do not see that the defendants’ pleading in this respect leads anywhere.  

[100]   The defendants argue as a related cause of action that s 48 RTA makes it a term of all tenancy agreements that the landlord must ensure that the premises and ancillary property to which the agreement relates are (a) habitable, (b) meet all health and safety requirements specified under an Act that apply to residential premises or the ancillary property, and (c) are reasonably clean when a tenant enters into occupation of the premises.  The defendants contend that s 122 RTA applies to enable compensation to be ordered for loss or damage suffered because the plaintiff failed to comply with the s 48(1)(b) RTA implied term, the breach being the same as that particularised in par [92] above.

[101]   For present purposes, and notwithstanding my finding in par [88] and par [91], I will proceed on the basis that the plaintiff was in breach of s 48(1)(b) RTA.  I will also assume that the plaintiff’s failure was not caused by an act or omission of any defendant tenant, an exception provided for in s 48(2) RTA.  The question then becomes as to whether the defendants’ losses were caused by the plaintiff's breach of s 48(1)(b) RTA.  In that context it is necessary to determine the real cause of the defendants’ losses.  In my judgment, the defendants’ losses (such as they were) were caused at the time each defendant (as actual or intending incoming tenant) entered into a contract with the outgoing tenant for the purchase of the improvements on site for a price which was greater than the residual salvage value of the improvements as entire chattels or structures or, as the case may be, as component building materials.  Alternatively, in the case of defendants who effected improvements, their losses (such as they were) were caused at the time each such defendant spent more on improvements than the residual salvage value of the improvements.  I have arrived at this conclusion because no tenant had the legal right to remain in the park for more than the initial three month period, and after the three month period, for more than one week at a time.  The plaintiff could have required the defendants to vacate at any time without needing to assign a ‘good reason’ if, for example, the plaintiff had wished to redevelop the park by building new on-site residential units for tourism purposes, or apartments/home units as permanent dwellings, or indeed if the plaintiff had wished to clear the entire site to attract a purchaser wishing to purchase vacant land in a strategic location for tourism development.  The fact that the plaintiff did none of these things and that it ultimately closed the park to end its non-compliance with Fire and Emergency Regulation 12(1) is irrelevant to the causation of the defendants’ losses.  It is only relevant, if at all, to determining the date at which those losses crystallized.  Obviously, the longer a tenant was able to remain in occupation at a modest site rent, and consequently able to obtain a greater benefit from the improvements he or she had purchased or effected, the less that tenant’s loss became.  Mrs Ute Pypke well appreciated this concept: when questioned in cross-examination about her company’s purchase of the previous tenant’s improvements in situ, she said that she would have been quite happy if she could have stayed "for a few years", clarifying that 12 years would have been "fine" but that four years was "too short".[119]

[102]   For this reason, I do not consider that any of the defendants suffered loss or damage because the plaintiff failed to comply with the relevant tenancy agreement or with an obligation under the RTA relating to such tenancy agreement.  Each of the defendant’s claims pursuant to section 122 RTA must therefore fail.

[103]   The defendants also argue as a further related cause of action that s 64(3) RTA makes it a term of all tenancy agreements that there is no legal impediment to the tenant’s occupation of the premises as a place of residence for the period of the tenancy that the landlord knew of, or ought to have known of, when entering the agreement.  However, I interpret the term incorporated by this subsection as related to the lawful use of the leased premises as a place of residence.  It is not directed to lawfulness generally, or to health and safety requirements imposed under other laws which are incorporated by s 48(1)(b) RTA.  However, if I am in error in restricting the scope of the term implied by s 64(3) RTA, the subsection itself confines the operation of the implied term to the period of the tenancy.  In the ordinary course, a tenant would only suffer loss on breach by the landlord of the s 64(3) implied term if the legal impediment referred to prevented the tenant from living in the premises for the period of the tenancy.  I cannot see that s 64(3) has any application in the present case.

[104]   For the reasons given, the defendants’ claims under the RTA must all fail.  However, before turning to the defendants’ other claims, I refer to a ground of defence raised by the plaintiff under s 6(h) RTA[120] which provided that the RTA did not apply to an agreement "under which a person occupies or is intended to occupy a caravan or a mobile home that is in a caravan park".  Although it is not necessary for me to decide this ground of defence, I consider that the statutory exception was directed at mobile accommodation in caravan parks intended for occupation as a place of residence (and possibly subsequently converted or modified in pursuance of that intention), but not at houses situated in caravan parks, nor the more permanently fixed structures sometimes known as “on site cabins”.

[105]   I have been referred by the plaintiff’s counsel to the second reading speech for the Bill for the RTA, in the course of which the responsible Minister said:-

“The bill will regulate all residential tenancies, including public housing tenancies.  One exception is caravan parks which will have separate provisions developed for inclusion in a new Caravan Parks Act.”[121]

[106]   The exception in the RTA as drafted does not exclude caravan parks from the operation of the Act, but only agreements under which a person occupies etc. a caravan or a mobile home in a caravan park.  The Minister’s second reading speech thus did not accurately reflect the law as enacted.  In that situation, this Court should concentrate on the text of the relevant provision.  The words of a Minister must not be substituted for the text of the law”.[122]  The task of statutory construction must begin with a consideration of the text itself, bearing in mind that “the language which has actually been employed in the text of legislation is the surest guide to legislative intention.”[123]  This Court must determine what the legislature meant by the words it used, not what the legislature intended to say.[124]

[107]   The application of the words of the statutory exception in s 6(h) RTA to the facts in the present case would result in a finding that all of the defendants with the exception of the ninth defendant, Peter Derrick, occupied a “caravan”, albeit a caravan which had been altered or converted in some way, and with annexed structures of some kind.  Most of those caravans were obviously still entire caravans, but even those which had been significantly structurally altered as mentioned in par [82] and par [83] were still, essentially, caravans.

[108]   Therefore, s 6(h) RTA had the effect that the RTA would not have applied to the tenancy agreements of any of the defendant counterclaimants, with the exception of the ninth defendant, Peter Derrick.

[109]   The finding at par [108] is of no consequence because, as mentioned, it was not necessary for me to decide this ground of defence.

Claims for misleading and deceptive conduct

[110]   The defendants contend that “the conduct of the Plaintiff in failing to inform them of the non-compliance issues and of any legal impediment that would likely require [their] premises to be vacated was unconscionable, misleading and deceptive.”  The defendants’ pleading in its full context[125] is as follows:

11.     The Plaintiff through its managers, servants or agents (since 2001, Sue and Dean Nankivell) made the representation as to permanency to the Defendants upon their enquiry of it prior to the purchase of the Fixtures:

11.1   the effect of the Representations were that:

11.1.1     upon purchase of the Fixtures, the Defendants would be able to occupy the Premises and to reside in the Park permanently; 

11.1.2     the Premises complied with the relevant safety and building standards;

11.1.3     so long as a Defendant complied with certain Park rules and conditions the Defendants would be entitled to remain in occupation of the Premises;

11.1.4     the Park would remain open for the indefinite future;

11.1.5     the Defendants could on-sell their Fixtures to incoming occupants of the Park;

11.1.6     any moneys spent on improvements would be recovered upon sale;

11.1.7     the Plaintiff through its manager would approve any proposed sale of the Premises to a future occupant.

11.2  the conduct of the Plaintiff in failing to inform the Defendants of the non-compliance issues and any legal impediment that would likely require the Premises to be vacated was unconscionable, misleading and deceptive.

[111]   The defendants’ claims for misleading and deceptive conduct thus proceed, in part at least, from the alleged “representation as to permanency” and “the Representations”.  However, I have rejected the defendants’ case that there was an express or implied “representation as to permanency”.[126]  I have also rejected the defendants’ case as to the making of “the Representations”.[127]  The defendants’ claim in paragraph 11.2 of their pleading must therefore be decided on the basis that the plaintiff’s alleged failure to inform was in the context that the plaintiff, its servants and agents had made no relevant express or implied representations as alleged.  As a result, this is not a case where the plaintiff’s ‘silence’ has to be assessed in the context that there was a duty to correct or add to things previously represented.  The plaintiff’s failure to inform is the sole ground of the misleading and deceptive conduct alleged by the defendants. 

[112]   The defendants’ claims for misleading and deceptive conduct can be maintained, if at all, only by those who purchased their sites after July 2006 and/or those who made further capital improvements to their sites after that date.  As mentioned in par [23] above, six counterclaimants (including the non-defendant claimant Mueller Nominees Pty Ltd) purchased after July 2006, in the period March 2007 to November 2009.  Various others are carried out capital improvements.

[113]   In submissions, the argument was developed that the plaintiff knew that the tenants’ improvements were not authorised, and yet the plaintiff continued to allow them to be bought and sold.  Mr Britten-Jones referred to the matters the subject of findings in pars [21], [22], [25], [26] and [27] above, and submitted that the plaintiff lulled tenants and future tenants into believing that the Park was a lawful and compliant caravan park operation.  The plaintiff knew that sales of sites were happening but did nothing to correct the tenants’ misconceptions.  Mr Britten-Jones argued that the plaintiff should have disclosed the existence of the notice received from Fire and Rescue in July 2006.[128]  He submitted that, by continuing to operate the Park without making the relevant disclosures, the plaintiff generated the false impression of lawfulness.

[114]   The defendants’ argument to the effect that ‘appearances were deceptive’ was further developed in submissions by reference to the defendants’ subjective appreciation or understanding.  Mr Britten-Jones relied on a paragraph of the majority decision in Butcher v Lachlan Elder Realty Pty Ltd [129] for the proposition that the “conduct” of the plaintiff was what a reasonable person in the position of the defendants, taking into account what they knew, would make of the plaintiff’s behaviour.

[115]   The decision in Butcher v Lachlan Elder Realty Pty Ltd concerned the conduct of a suburban real estate agent who obtained a survey diagram of a sale property from the vendor’s solicitors.  The agent then incorporated the survey diagram into a colour promotional brochure describing the property.  The survey diagram was not accurate in that it depicted the location of a swimming pool as being wholly within the vendor’s land whereas the pool extended into reclaimed land which did not form part of the vendor’s freehold.  The agent’s promotional brochure stated: “All information contained herein is gathered from sources we believe to be reliable.  However we cannot guarantee its accuracy and interested persons should rely on their own enquiries.”  The purchasers of the property sued the agent for damages for misleading or deceptive conduct.  They claimed that the promotional brochure was misleading because it misrepresented the location of the swimming pool.  

[116]   On appeal by the purchasers to the High Court, the majority[130] held that, if the agent’s disclaimer was examined from the point of view of a careful reader, it communicated that the agent was trying not to make any representations about the accuracy of the information conveyed, only that the agent believed the sources of it to be reliable.  It would have been plain to a reasonable purchaser that the agent was not the source of the information which was said to be misleading.  The agent did not purport to do anything more than pass on information supplied by another or others.  The disclaimer both expressly and implicitly disclaimed any belief in the truth or falsity of that information.  It did no more than state a belief in the reliability of the sources.  Therefore, because the agent had done no more than communicate what the vendor was representing, without either adopting or endorsing it, the agent had not engaged in misleading or deceptive conduct within s 52 Trade Practices Act 1974 (Cth) in distributing the brochure to the purchasers.

[117]   It is difficult to see how the decision in Butcher v Lachlan Elder Realty Pty Ltd assists the present defendants.  The purchasers were there alleging that a particular misrepresentation was made to them.  The issue for decision was the proper construction of the disclaimer clause.  The particular paragraph relied on by the defendants’ counsel reads, relevantly, as follows (italic emphasis added):  

“ … If the “conduct” of the agent is what a reasonable person in the position of the purchasers, taking into account what they knew, would make of the agent’s behaviour, reasonable purchasers would have read the whole document, given its importance, its brevity, and their use of it as the source of instructions to professional advisers.  There are circumstances in which the “conduct” of an agent would depend on different tests. For example, those tests might turn on what purchasers actually made of the agent’s behaviour, whether they were acting reasonably or not, and they might also call for consideration of how the agent perceived the purchasers.  Tests of that latter kind might be appropriate for plaintiffs of limited experience acting without professional advice in rushed circumstances.  They are not appropriate in the present circumstances. …”  

[118]   Notwithstanding the reference to “different tests”, tests which might turn on “what purchasers actually made of the agent’s behaviour”, and to persons “of limited experience acting without professional advice in rushed circumstances”, the majority was speculating on possibilities and was not seeking to lay down any hard and fast test or to define the circumstances for the application of such a test.  I cannot see how the defendants in the present case can succeed in a claim for misleading and deceptive conduct on the basis of their assumptions arising from the plaintiff's silence, even if they also assumed from the appearance of the Park that it was a nice place to live or that it was fully compliant with all relevant regulations.

[119]   The defendants rely on Henville v Walker[131] as authority for the proposition that if a defendant’s breach has “materially contributed” to the loss or damage suffered, it will be regarded as a cause of the loss or damage, despite other factors or conditions having played a possibly even more significant role in causing the loss or damage.  It is rare that contravening conduct is the sole cause of a person suffering loss.  Additional factors will always be capable of identification as a cause of the loss.  These propositions are clearly correct, but the problem for the defendants’ case is that they have not established that the plaintiff’s conduct was “contravening conduct”.  

[120]   The plaintiff was not a contracting party, with any defendant, for the sale and purchase of the Fixtures or the sites in the Park.  Notwithstanding my general observation in par [17] above, the plaintiff obtained no contractual benefit or commercial advantage in respect of its impugned conduct in non-disclosure.  There is no evidence that the plaintiff or its representatives knew the details of the contractual negotiations between vendors and the defendants.  The plaintiff never assumed the responsibility to advise or provide information to the defendants, nor did the defendants seek advice or information.  There were no previous incomplete statements to correct, or new information, inconsistent with previous statements, which the plaintiff might have been required to disclose. 

[121]   Moreover, the relationship of the parties was that of landlord and tenant (or potential tenant) under a weekly tenancy, the terms of which were tolerably clear.  In my opinion, the plaintiff had no obligation to explain the nature of a weekly tenancy to any of the defendants.  I add that most if not all had previously been tenants.  The relationship of landlord and tenant was not one which would normally be expected to give rise to any obligation of disclosure on the part of the landlord,[132] and in my opinion that is particularly so in relation to disclosures relevant to a tenant’s dealings with third parties.

[122]   The defendants’ misleading and deceptive conduct claims must be dismissed.

Specific findings – Mueller Nominees Pty Ltd

[123]   In relation to Mueller Nominees Pty Ltd, although Phillip Mueller was the tenant under the Tenancy Agreement dated 5 May 2009, I accept the evidence of Mrs Pypke that Mueller Nominees Pty Ltd provided the entire purchase price paid to Mr Cartwright for the purchase of the improvements on site 17.  The evidence of Mrs Pypke is supported by the company’s cheque butt and debit entry shown in the bank statements of Mueller Nominees Pty Ltd.[133]  As a result of a miscommunication (or non-communication) on the part of Mrs Pypke with the accountants engaged by Mueller Nominees Pty Ltd, the acquisition by the company of  the improvements on site 17 did not appear in the company’s financial statements for the financial year ended 30 June 2009, although the transaction and its accounting consequences were picked up and shown in the company’s financial statements for the financial year ended 30 June 2010.[134]  Sub-lease agreements for site 17 then prepared by Mrs Pypke on 23 July 2010, 12 September 2010 and 10 December 2010 were all in the name of Mueller Nominees Pty Ltd as lessor.[135]

[124]   I accept the explanation of Mrs Pypke as to why there was no reference to the acquisition by the company of the improvements on site 17 in the company’s financial statements for the financial year ended 30 June 2009:

“I missed it on putting it on my books but it was always we pay the company paid for it on the things and it was always belonged to the company.”[136]  

[125]   I find that the same matters referred to as circumstances (4), (5) and (6) in par [84], taken with the additional matters set out by me in par [88] have the effect that the improvements on site 17 were not fixtures.  They were chattels, and I find that they were the property of Mueller Nominees Pty Ltd.  If I am wrong that the improvements on site 17 were chattels, and that as a matter of fact and law they were fixtures, then I would consider that they were fixtures of the kind which the party entitled had the right to remove during the term of the relevant tenancy.  In either case, Mueller Nominees Pty Ltd has sufficient interest to maintain a counterclaim.

[126]   I therefore find that the company is entitled to bring a counterclaim as pleaded in the Defence and Counterclaim document dated 19 December 2011, and I make an order joining Mueller Nominees Pty Ltd as a claimant party.

[127]   However, my findings against all defendants that there was no express or implied “representation as to permanency” by the plaintiff, its servants or agents, and that there was no evidence as to the making of “the Representations” as alleged[137] apply equally to Mueller Nominees Pty Ltd.  Moreover, I am satisfied that Mrs Pypke handed over the company’s cheque for the purchase of the improvements on site 17 to Mr Cartwright, the vendor, on 3 May 2009, and that she did not speak with the plaintiff’s managers until the time of execution of the Tenancy Agreement on 5 May 2009.  The claim that Mueller Nominees Pty Ltd and/or Phillip relied upon “the Representations” and were thereby induced into purchasing the Fixtures must be rejected on the basis of that chronology.

[128]   Mr Britten-Jones submits that the company’s cheque was not cashed until 7 May 2009, and thus there was time for the cheque to be cancelled if full disclosure had been made by the plaintiff on 5 May 2009.  That was not part of the case of Mueller Nominees Pty Ltd at trial, based on its pleadings, and the contention emerged as a possibility only in the cross-examination of Mrs Pypke.[138]  Moreover, if Mrs Pypke had cancelled the cheque, the company would probably have faced an action at the suit of Mr Cartwright for its liability on the cheque.  These issues were not agitated at trial, but I mention them to indicate that the company’s argument that there was time for its cheque to be cancelled would not necessarily result in the company redeeming its position and not being out of pocket for the $65,000 agreed to be paid to Mr Cartwright.  In this respect, I accept the substance of the plaintiff’s submission that the practical capacity to cancel the cheque would not be relevant if the company remained liable on it.

[129]   In light of my findings, the misleading and deceptive conduct claim by Mueller Nominees Pty Ltd must be dismissed.

The claims in negligence

[130]   The defendants’ claims in negligence rely on the allegation that the plaintiff owed the defendants a duty of care “in matters in connection with and incidental to the purchase of the Fixtures”.[139]  From that basal allegation the defendants plead[140] numerous other duties of care: a duty of care to ensure that each defendant's premises complied with relevant safety standards; a duty to warn that premises did not comply with the relevant safety and building standards; a duty to warn that there was no security of tenure and that one week's notice requiring vacant possession could be given; a duty to warn that the defendants could be evicted at any time and that the tenants’ improvements (the Fixtures) might not be able to be onsold to a future occupant, which would effectively extinguish the capital value of the Fixtures; a duty to inform the defendants that notices had been received under the Fire and Emergency Act which required works to be carried out which would affect the Fixtures and would most likely require their demolition, and finally a duty not to allow the defendants to occupy premises in breach of Regulation 12 of the Fire and Emergency Regulations.

[131]   The defendants do not allege that the plaintiff assumed responsibility to advise or provide information to them at the time they purchased their sites.  They do not allege that the plaintiff adopted a position akin to that of a public body which owes a duty of care in answering formal inquiries by intending land purchasers in relation to road widening proposals.[141]  They do not allege that the plaintiff had a practice of supplying information upon which recipients were likely to rely, or that the plaintiff held itself out as willing to exercise reasonable skill and diligence in supplying accurate and complete information.  The defendants do not allege that the plaintiff made any negligent misstatements to them.  The defendants do not even allege that they (or any of them) asked the plaintiff to provide information as to the fire safety and building compliance of the Fixtures, or as to the medium and long term future of the Park.[142]  

[132]   The defendants’ case[143] is that the plaintiff had a duty to speak out unprompted, and provide them with unsolicited information, advice and warnings relevant to their contractual dealings with third parties (the outgoing tenants).  

[133]   None of the defendants suffered personal injury or property damage as a result of the matters in respect of which the plaintiff is said to have owed them a duty of care.  The defendants seek to recover damages for pure economic loss.  That fact alone does not exclude the possibility of recovery, since there are circumstances in which the law recognises a duty of care to enable recovery of pure economic loss,[144] but the present case is not one of them.  

[134]   In my judgment the defendants have failed to establish that the plaintiff was subject to the various duties alleged, referred to in par [130].

[135]   The relationship of the parties was that of landlord and tenant (or potential tenant) under a weekly tenancy.  The relationship was not one of the particular relationships which have been held to raise an obligation of disclosure, for example; parties to contracts uberrimae fidei; trustee and beneficiary; solicitor and client; principal and agent, and guardian and ward.[145]  Contracting parties dealing at arms’ length in a commercial situation in which they have conflicting interests may often be aware of information which, if known to the other, might cause that other party to take a different position in negotiations.  However, even that does not of itself impose an obligation on a party to make disclosure to the other, as Gleeson CJ explained in Lam v Ausintel Investments Australia Pty Ltd:

“ … This does not in itself impose any obligation on the first party to bring the information to the attention of the other party, and failure to do so would not, without more, ordinarily be regarded as dishonesty or even sharp practice.  It would normally only be if there were an obligation of full disclosure that a different result would follow.  That could occur, for example, by reason of some feature of the relationship between the parties, or because previous communications between them gave rise to a duty to add to or correct earlier information.” [146]

[136]    In the present case, there was no ‘particular’ relationship, nor were there previous communications to be corrected.  The plaintiff was not a contracting party, with any defendant, for the sale and purchase of the Fixtures.  Moreover, there is no evidence that the plaintiff or its representatives knew the details of any contractual negotiations (or the outcome of such negotiations) between the defendants and the outgoing tenants for the purchase and sale of the Fixtures, including whether the agreed purchase price included a premium for expected long term uninterrupted possession of the site or, conversely, was subject to a discount for the risk that possession might be short-term.  There is no evidence that the plaintiff or its representatives knew the nature and extent of inquiries made by each defendant as to the fire safety and building compliance of the Fixtures.  No defendant discussed these matters direct with the plaintiff or its representatives.  

[137]    I conclude that the plaintiff had no duty to ‘speak out’ and provide the defendants with unsolicited information, advice and warnings relevant to their contractual dealings with the outgoing tenants. 

[138]    The defendants assert two further duties of a different kind: a duty of care to ensure that each defendant's premises complied with relevant safety standards and a duty not to allow the defendants to occupy premises in breach of Regulation 12 of the Fire and Emergency Regulations.

[139]   In relation to the two further alleged duties, my observation in par [133] above is equally relevant: none of the defendants suffered personal injury or property damage as a result of the matters in respect of which the plaintiff is said to have owed them a duty of care.  The present case is not within any established category in which liability for negligence is imposed.  Non-compliance with safety standards might have been relevant if there had been a foreseeable risk of injury, and injury then had been caused to a defendant as a result of a specific defect which the plaintiff owed a duty of care to inspect for and repair, as was the case in Northern Sandblasting Pty Ltd v Harris.[147]  However, the present defendants are attempting to impose on the plaintiff a duty of care to avoid the defendants suffering pure economic loss.  Moreover, in respect of these two further alleged duties, the defendants’ losses (such as they were) were caused at a much earlier time than the date of closure of the Park, as I explained in par [101] above.  The fact that the Park closed because of the plaintiff’s concerns about the Park’s ongoing non-compliance with the Fire and Emergency Regulations is on my analysis irrelevant, for reasons also explained in par [101] above.  Therefore, none of the defendants suffered loss as a consequence of the alleged breach by the plaintiff of the two further alleged duties.

[140]   There is a further reason why the defendants cannot succeed in a claim for pure economic loss.  Although, as mentioned in par [133] above, there are circumstances in which the law recognises a duty of care to enable recovery of pure economic loss, the cases relating to liability for pure economic loss emphasise certain matters basic to the structure of our social and legal relations, such as individual autonomy and vulnerability to risk.  In relation to that vulnerability, McHugh J made the following statement in Perre v Apand:

“Cases where a plaintiff will fail to establish a duty of care in cases of pure economic loss are not limited to cases where imposing a duty of care would expose the defendant to indeterminate liability or interfere with its legitimate acts of trade.  In many cases, there will be no sound reason for imposing a duty on the defendant to protect the plaintiff from economic loss where it was reasonably open to the plaintiff to take steps to protect itself.  The vulnerability of the plaintiff to harm from the defendant’s conduct is therefore ordinarily a prerequisite to imposing a duty.  If the plaintiff has taken, or could have taken steps to protect itself from the defendant’s conduct and was not induced by the defendant’s conduct from taking such steps, there is no reason why the law should step in and impose a duty on the defendant to protect the plaintiff from the risk of pure economic loss.”[148]

[141]   In the present case none of the defendants sought the advice or assistance of a solicitor, conveyancer, accountant, surveyor, engineer, building certifier or other professional before purchasing the Fixtures on his or her site.  None of the defendants made enquiries with the relevant authorities or with the plaintiff or its representatives as to the fire safety and building compliance of the Fixtures.  All of the defendants (and I include Mueller Nominees Pty Ltd) could have taken steps to protect themselves from the plaintiff’s conduct (or what they complain was conduct on the part of the plaintiff), but did not do so.  The plaintiff did not do anything to induce the defendants not to take such steps.  In these circumstances there is no basis for the law to step in and impose a duty on the plaintiff to protect the defendants from the risk of pure economic loss.

Valuation evidence

[142]   Given my findings in par [101] as to the cause of the defendants’ losses, it is not strictly necessary for me to deal with the valuation evidence contained in the reports of Ross Copland and Daniel Ackroyd, both Certified Practising Valuers, as to the value of each defendant’s site at date of valuation, 30 June 2011.[149]

[143]   The valuers did not value the residual salvage of the improvements as component chattels, structures or building materials.  Their covering letter to the separate site valuation reports acknowledged that they were not qualified to do so.

[144]   I found the valuation evidence flawed, in large part as a result of the assumptions made by the valuers at the request of the defendants’ legal representatives.  The valuers were asked to assume “an implied continued right of occupancy at a market site rent commensurate with the existing and historic rent levels.”  The assumption as to an implied continued right of occupancy seems to have led to an assumption as to an unspecified but very long-term occupancy of each site on the part of each defendant, an assumption which was contrary to the fact (or position at law) that each tenant had a periodic weekly tenancy.  The second assumption, that the market site rent would be commensurate with the “existing and historic rent levels”, was something of a contradiction in terms in that then-existing and historic rentals were below market.  As I mentioned earlier in this judgment, the plaintiff set site rentals at modest levels and did not exploit the defendants’ enhanced commitment to remain tenants of their sites because of their perception of the value or usefulness of improvements on their sites.

[145]   A proper professional valuation would have taken into account the risk of imposition by the landlord of a commercial site rental, which I consider would have been much higher (although to what extent I do not know) than that charged by the plaintiff at date of valuation.  My view that a commercial site rental would have been much higher is based on the cross-examination of all of the defendants and of Mr Ackroyd.[150]

[146]   The assumptions provided to the valuers purported to hold the plaintiff landlord to an ongoing, near-indefinite tenure, but with an inability to adjust to commercial market rentals. They were unrealistic assumptions, and the valuations were consequently flawed. 

Damages – alternative observations

[147]   Although I have rejected the defendants’ damages claims (and that of Mueller Nominees Pty Ltd), I wish to indicate that I accept the plaintiff’s alternative submission[151] in relation to the claim for damages for misleading and deceptive conduct. That submission derives in part from the problems identified with the valuation evidence, discussed by me above.  I set out the substance of the submission below:

Accounting for benefits when assessing damages

4.       As submitted in the Plaintiff’s Closing Submissions, paragraph 92, if damages are to be awarded to the defendants, or any of them, they should be “diminished by any corresponding advantage in money or money’s worth obtained by (the victim) on the other side”: Wardley Australia Ltd v WA (1992) 175 CLR 514 at 530; Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494.

5.       The defendants’ case is that, in reliance upon the plaintiff’s misleading or deceptive conduct, they paid for the “improvements” (the caravan and structures on the sites) which they thought they could occupy “permanently”, which meant for as long as they wished (subject to paying rent and complying with the Park’s rules).  If, consequent upon that payment, a defendant has in fact been able to occupy a “site” for a significant period of time and as a result is better off than if he or she had not made the purchase then the money’s worth of that advantage must be taken into account in determining the defendant’s loss caused by the plaintiff’s conduct.

6.       This benefit is measureable by reference to the rent which would have paid for equivalent rented premises in Alice Springs across the period of occupation, less the rent and other costs at the caravan park.  The plaintiff’s spreadsheets contain a reasonable assessment of this net benefit.

7.       The defendant’s submission that no valid comparison can be made between ordinary rented accommodation in Alice Springs and the “sites” (for example at paragraph 1.17 in relation to Koerner, and repeated in relation to the other defendants):

7.1     requires the court to ignore the defendant’s own cases (column 2 of the Defendant’s Particulars of Loss Schedule on the Counterclaim) and the evidence of their own expert (Exhibit 31, where the assessed equivalent rental value of each site is set out) as to the rental value of their “sites”, which values are consistent with the plaintiff’s submissions as to the amounts the defendants have saved by “purchasing” a “site”;

7.2     requires the court to treat the plaintiff’s caravan park as if it did not have the improvements for which the defendants were prepared to pay the sums they paid which, on the defendants’ cases, gave the impression of “permanence” and made living at their site so attractive;

7.3     requires the court to ignore the fact that almost all of the defendants were not living in caravans prior to moving to the plaintiff’s caravan park and are now not living in caravans;

7.4     requires the court to ignore the fact that the defendants have adduced no evidence to enable the court to make any findings as to the nature and terms of tenancies at other caravan sites, to show that similar accommodation as provided at the plaintiff’s caravan park was available elsewhere for the same site rental but without any capital or other additional costs.  If such sites existed, the question would arise as to why the defendants were prepared to pay substantial sums to live at the plaintiff’s park.

8.      The need to bring this benefit to account is highlighted further by the defendants’ erroneous analysis of the “usual measure of damages for the purchase of an asset based on misleading and deceptive conduct”.  Where a breach of s 52 has induced the purchase of an asset at an over-value, damages are assessed by comparing the price paid with the true value of the asset “at the time of purchase” (Henville v Walker (2001) 206 CLR 459 per Gleeson CJ at [22]).  The true value of the improvements when they were purchased was not nil, but reflected the prospect that the purchasers would be able to enjoy the benefit of their investment in the improvements into the future.  The defendants have not addressed this value in their evidence, but we know that, as it proved, all save the most recent purchasers got their money back.  Accordingly, this alternative approach to assessment reinforces rather than contradicts the need to bring to account the benefit that the defendants actually enjoyed from their investment in the improvements.

9.      The plain fact is that the substantial capital sums paid by the defendants reflected the defendants’ assessment of the savings and other benefits they would enjoy from living at the plaintiff’s park even after taking into account the weekly rental charge.  It is respectfully submitted that a proper assessment of loss must bring these savings and other benefits to account for the period the defendants were in occupation and enjoyed these savings and other benefits.

Conclusions

[148]   It follows from the above reasons that the defendants’ counterclaims must be dismissed.

[149]   The plaintiff is therefore entitled to judgment on each and all of the counterclaims: those made by the defendants and that made by Mueller Nominees Pty Ltd. 

[150]   The plaintiff is also entitled to judgment on its primary claims against all defendants for possession and for such rental (if any) as may have been outstanding at the time the defendants gave vacant possession of their sites.

[151]   The plaintiff served a succession of written notices of termination (or at least notices purporting to terminate the tenancy) on all of the defendants: (1) a notice of termination dated 15 September 2010 in the form of a letter inviting the tenant to enter into a termination agreement; alternatively, if the tenant did not wish to enter such an agreement, notice formally terminating the tenant’s tenancy, purporting to be effective 5 November 2010,[152]  (2) notice of termination dated 26 October 2010 in the form of a letter informing the tenant that his or her tenancy was terminated effective 5 November 2010,[153]  (3) notice of termination dated 15 December 2010, requiring vacant possession of the tenant’s site and notifying termination of the tenancy effective midnight 27 January 2011,[154] and (4) a notice of termination dated 15 June 2011, given without prejudice to the plaintiff's contention that the tenant’s tenancy had already been validly terminated, notifying termination of the tenancy on 20 July 2011 and requiring vacant possession of the tenant’s site on and from that date.[155]

[152]   The plaintiff’s case is that all tenancies were effectively terminated on 5 November 2010, as a result of the notice contained in the letter dated 15 September 2010,[156] alternatively on 27 January 2011, as a result of the notice dated 15 December 2010.  The plaintiff's case in the further alternative, based on the notice of termination dated 15 June 2011, would result in the tenancies between the plaintiff and each of the defendants being terminated on various dates, ascertained in each case as the last day of the period of the tenancy next following the giving of a notice.[157]

[153]   Mr Britten-Jones of counsel for the defendants accepts that those notices were served and that all formal service requirements were met.  He did not, however, address me on the legal effect of the notices.  Moreover, although Mr Britten-Jones addressed orally at the conclusion of the evidence at trial, and subsequently provided written submissions setting out the findings contended for, for each of the counterclaimants, he did not address as to any alternative position in the cases of each of the defendants as to the dates on which each defendant vacated his or her site; and the amount of rental, if any (including double rental), which each defendant may have been liable to pay.  In the circumstances, I consider that I should hear from Mr Britten-Jones as to whether he contests the plaintiff's calculations as to the amount(s) of rental outstanding, including as to whether any and if so what amounts by way of bond retained by the plaintiff should be taken into account. 

[154]   I invite the parties to provide a draft of the formal judgment and orders which should be entered and made to give effect to these Reasons.  Participation in the drafting of such a document by the defendants’ legal representatives is, of course, without prejudice to any appeal rights they may wish to exercise.

[155]   I will also hear from the parties in relation to the issue of costs.

---------------------------



[1]     Mueller Nominees Pty Ltd.

[2]     I accept the evidence of Patrick Black, director of the plaintiff, at T380-381 as to “permanent” being in contradistinction to “overnight” as a descriptive of caravan sites available for longer term occupancy. 

[3]     based on the reasoning in Amad v Grant (1947) 74 CLR 327 at 336.5, per Latham J ; and at 352.8, per Williams J.

[4]     Mr and Mrs Dean and Sue Nankivell were joint managers for most of the period from early 2001 to late 2010.  Mr Nankivell had previously been in charge of the maintenance of a large hotel complex in Alice Springs (the Sheraton), and Mrs Nankivell had been working as a property manager employed by a local real estate firm – see evidence of Patrick Black at T354.

[5]     See, for example, the evidence of the valuer, Dan Ackroyd, at T308-9, where he agreed that a rental increase from $95 pw to $115 pw over the previous ten years was “extremely modest”. 

[6]     There were certificates of occupancy for the ablution blocks servicing each site; however, these were landlord’s (plaintiff’s) fixtures. 

[7]     See the document signed by Peter Derrick and dated 14 September 2000, annexure ‘PD2’ to exhibit 6.

[8]     See the document signed by Mary Ann Scott and Stephen Scott dated 21 September 2007, annexure ‘MKS1’ to exhibit 8.  There had been a very similar clause in the later Rules and Conditions documents - see exhibit 1, tabs 16, 17 and 20. 

[9]     In the purchase of site 35 by Rick Morley, the plaintiff acted as agent for the vendor, and received the sale/purchase monies in payment of outstanding rental, with the balance being forwarded to the vendor - see exhibit 26, par 4 and par 5; and T273.

[10]    Evidence Patrick Black T358.7.

[11]    T375.4.

[12]    See footnote 4.

[13]    Fire and Emergency Regulation 12(1) provided for separation in these terms: “The owner or occupier of land used as a caravan park must ensure that caravans are separated from each other, from any accommodation cabins or other buildings on the land and from the boundary of the land by not less than 3 metres at any point.”  The reference to the “BCA” was to the Building Code of Australia. 

[14]    See T386.2.

[15]    T 386.7.

[16]    The receipt was part of Exhibit 4, at p.20.

[17]    Exhibit 21, paragraph 6; T244.

[18]    T387.2.

[19]    T386.2.

[20]    Fire and Rescue referred to the absence of building permits (Permits to Build or Permits to Occupy) for the permanent caravans and other attached structures in the Park, in Part 2.1 of its letter to the plaintiff extracted in par [21] above.  Fire and Rescue had recommended that the plaintiff engage a registered private Building Certifier; alternatively seek written advice from the Building Advisory Branch and Planning section of the Department of Planning and Infrastructure.

[21]    Par [23] and par [24] above set out the counterclaimants’ and the one non-defendant claimant’s site purchase dates.

[22]    Fire and Rescue thus agreed to a course by which it would eventually (within 18 months) ensure appropriate Fire Safety standards at the Sienna Caravan Park, whilst making allowance in the short term for the existing housing shortage in Alice Springs and the potential hardship which would have been caused if the regulations had been strictly enforced and the occupiers of non-compliant structures evicted.

[23]    The additional problem of the three metre separation required under Northern Territory Fire and Emergency Regulation 12(1) – see footnote 13 above – still remained.

[24]    Exhibit 1, document 65.

[25]    Third Defence paragraph 1.18.

[26]    Third Defence paragraphs 1.6; 1.7.1 and 1.7.2; 2.1.2; 2.1.3; 2.3.1.2 and Counterclaim paragraphs 11; 11.1.1 and 11.1.3.  The so-called “representation as to permanency” was said to comprise a combination of words allegedly said (1) to the effect that each purchaser would be able to reside at the Park on a permanent basis, and (2) that if the purchaser wished to vacate at some time in the future then there would be no impediment to the Fixture being onsold to an incoming occupant – see Third Defence paragraph 1.7.2.

[27]    Third Defence paragraph 3.2.

[28]    With the possible exception of Rose Habusta, whose affidavit evidence in chief suggested that she had read the “rules and regulations at the Park” before becoming a tenant; also Deborah Gasson, whose affidavit evidence in chief suggests that she may have been aware of the grounds for removal of tenants after speaking with Dean Nankivell. 

[29]    Exhibit 6, paragraph 5.

[30]    T112-113.

[31]    Exhibit 13, paragraphs 2 and 3.

[32]    T196.5.

[33]    T196.9.

[34]    T197.1.

[35]    T200.6.

[36]    T200.7.

[37]    T203.2.

[38]    Exhibit 25, paragraphs 2, 3 and 4.

[39]    T256.8.

[40]    T257.7; at T261.1, she agreed that she was told something similar by the plaintiff’s park managers, and that she understood it in the same way. 

[41]    T258.5.

[42]    Annexure “ADC1” to exhibit 25.

[43]    T262-263.

[44]    Exhibit 26, paragraphs 4 and 5.

[45]    Exhibit 26, paragraph 11.

[46]    Annexure “RM1” to Exhibit 26. 

[47]    T273.9 to 274.

[48]    T274.6.

[49]     T278.7.

[50]   T280.1; the inconsistency was not explained in re-examination.

[51]    Exhibit 15, paragraphs 2 and 4.

[52]    Exhibit 5, paragraph 1.

[53]    T75.3.

[54]    T75.5.

[55]    T84.4.

[56]    T90.5.

[57]    Exhibit 21, paragraphs 3 and 4.

[58]    Exhibit 21, paragraph 7.

[59]    T240.5. Mrs Nossiter signed a Rules and Conditions document dated 16 March 2007 – see exhibit 1 tab 28.

[60]    T241.9.

[61]    T242.1.

[62]    The final purchase price was $26,000 – see T119.5.

[63]    Exhibit 8, paragraphs 3 and 4.

[64]    Exhibit 8, paragraph 6.

[65]    Annexure “MKS1” to Exhibit 8.

[66]    T126.8-127.1; see also T133.5.

[67]    T129.5.

[68]    T133.5.

[69]    Exhibit 14, paragraphs 4 and 5.  Mr Bird signed a Tenancy Agreement (annexure “BFB1”) dated 15 September 2007.

[70]    T217.8-218.2.

[71]    Exhibit 11.

[72] Exhibit 10, paragraphs 1, 2 and 5. Ms Gasson signed a Tenancy Agreement dated 7 April 2009 (exhibit “DKG2”), for a term starting on 7 April 2009 and stated to end on 30 July 2009, but which provided that, after three months, the lease would be on a week to week basis.

[73]    T170.9; 171.5.

[74]    T171.9.

[75]    Exhibit 4, page 14 – cheque butt and debit entry shown in the bank statements of Mueller Nominees Pty Ltd

[76]    Exhibit 27, paragraph 5.

[77]    Exhibit 1, document 79.

[78]   T296.6 The chronology was, therefore: (1) handover of cheque to vendor for purchase price of the site on 3 May 2009, and then (2) discussions with plaintiff and execution of tenancy agreement on 5 May 2009.

[79]    T299.1.

[80]    T298.6.

[81]    See the discussion in pars [5], [7], [9], [10] and [11] above.

[82]   Third Defence dated 24 August 2011, paragraph 1.7.2.  The “representation as to permanency” was pleaded differently in the Defence and Counterclaim of the twenty-second defendant and Mueller Nominees Pty Ltd, paragraph 1.7.2: “… said words to the effect that site was permanent and that the Fixture would be on sold to another incoming tenant.”

[83]    See BP Refinery (Western Port) Pty Ltd v Shire of Hastings (1977) 180 CLR 266; Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 347. 

[84]    Third Defence par 1.7.2.

[85]    Plaintiff’s Closing Submissions, paragraph 10.6.

[86]    as alleged in paragraph 3.2 of the Third Defence dated 24 August 2011.

[87]    A short-hand reference by the defendants’ counsel to the criteria for establishing an equitable estoppel stated and explained by Brennan J in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 428-429.

[88]    By reference to the defendants’ counsel’s document “Findings contended for by the Defendant/Counterclaimants”. 

[89]    Paragraph 19 of the Counterclaim forming part of the Third Defence.

[90]    In Giumelli and anor v Giumelli (1999) 196 CLR 101, relied on by the defendants, the High Court considered that an assumption as to the future acquisition of ownership of property had been induced by representations upon which there had been detrimental reliance.  The court ordered payment of a sum representing the value of the block of land the subject of the ‘induced assumption’ – see par [6] and par [51] - [58].

[91]    Definitions all taken from s 4 Residential Tenancies Act.

[92]    Third Defence paragraph 1.4 .1.

[93]    May v Ceedive Pty Ltd [2006] NSWCA 369.

[94]    May v Ceedive Pty Ltd [2006] NSWCA 369 at [65] per Santow JA.

[95]    May v Ceedive Pty Ltd [2006] NSWCA 369 at [73].

[96]    May v Ceedive Pty Ltd [2006] NSWCA 369 at [72].

[97]    cited with approval as an accurate review of the authorities by the Northern Territory Court of Appeal in Pegasus Gold (Australia) Ltd v Metso Minerals (2003) 16 NTLR 54 at [20], per Mildren J.  The Court of Appeal also approved a similar review by Ipp J. in Eon Metals NL v Commissioner of State Taxation (WA) (1991) 91 ATC 4841.

[98]    Pegasus Gold (Australia) Ltd v Metso Minerals (2003) 16 NTLR 54 at [21], per Mildren J.

[99]     N H Dunn Pty Ltd v L M Ericsson Pty Ltd [1980] ANZ ConvR 300 at 305, per Glass J (NSWCA).

[100] (1951) 97 CLR 146 at pp 156-7.

[101] Plaintiff’s Closing Submissions paragraph 17, in reference to N H Dunn Pty Ltd v L M Ericsson Pty Ltd [1980] ANZ ConvR 300 at 304, per Mahoney JA.

[102] The Court of Appeal did not need to deal with the plaintiff’s alternative submission that, if the PABX system had become a fixture, Dunn was entitled to remove them. 

[103] The North Shore Gas Company Limited v Commissioner of Stamp Duties (NSW) (1940) 63 CLR 52 at 68, per Dixon J; also at 70: “removability … is a well-known characteristic of tenants’ fixtures, which until removal are considered part of the realty.”  The High Court held in North Shore Gas that gas mains and service pipes were fixtures and therefore not exempt as “goods” from assessment of ad valorem conveyance stamp duty.

[104] National Australia Bank Ltd v Blacker & Anor (2000) 104 FCR 288 at 296 [17] per Conti J, citing Holland v Hodgson (1872) LR 7 CP 328 at 334-335; Re May Bros Ltd [1929] SASR 508 at 513; Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700 at 712; see also May v Ceedive Pty Ltd [2006] NSWCA 369 at [65] per Santow JA.

[105] The ninth defendant, Peter Derrick, describes the building he purchased on site 11 as a “professionally built cabin” – see exhibit 6, paragraph 3(i).  See also the description of the improvements on site 11 by Ross Copland in his valuation report dated 27 September 2011, part of exhibit 31.

[106] Description of the improvements on site 15 (Linda Mansell) by the valuer, Ross Copland, in his report dated 27 September 2011, part of exhibit 31.

[107] Description of the improvements on site 16 (Mr and Mrs Nossiter) by the valuer, Ross Copland, in his report dated 27 September 2011, part of exhibit 31.

[108] N H Dunn Pty Ltd v L M Ericsson Pty Ltd [1980] ANZ ConvR 300, and see par [77] above.

[109] Plaintiff’s closing submissions paragraphs 18.1 to 18.7 inclusive, re-ordered.

[110] See par [73] above; see also May v Ceedive Pty Ltd [2006] NSWCA 369 at [72], summarised in par [72] above.

[111] see North Shore Gas Company Ltd v Commissioner of Stamp Duties (supra) footnote 103, discussed in par [78] above.

[112] See photograph annexure “BFB2’’ to Exhibit 14.

[113] s 47 Residential Tenancies Act read as follows:     

Premises not to be let unless habitable and safe

A landlord must not enter into, or offer to enter into, a tenancy agreement unless the premises and ancillary property to which the agreement relates or would relate:

(a)     are habitable; and

(b)    meet all health and safety requirements specified under an Act that apply to residential premises or ancillary property.

Maximum penalty:   100 penalty units.

[114] See, for example RTA ss 51, 52, 54, 55, 56, 58, 64, 65, 68 and 78.

[115] Third Defence, paragraph 3.1.

[116] Third Defence, paragraph 3.2.

[117] Brooks v Burn Philp Trustee Co (1969) 121 CLR 432 at 458-9, per Windeyer J.

[118] for the same reason I do not understand why the alleged “representation as to permanency” is said to give rise to a life tenancy – see par [54] above.

[119] T 298.9.

[120] as it stood at all relevant times from date of commencement of the RTA on 1 March 2000, to 1 May 2012.

[121] Eighth Assembly First Session 10/08/1999 Parliamentary Record No: 18; Mr Baldwin, Minister for Industries and Business.

[122] Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518 per Mason CJ, Wilson and Dawson JJ. 

[123] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 at [47], [51].

[124] R v JS [2007] NSWCCA 272 at [142], per Spigelman CJ.

[125] Third Defence/counterclaim paragraph 11.2. 

[126] see par [52]and par [57] above.

[127] see par [61] above.

[128] see par [21] above.

[129] Butcher and anor v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592 at [50], per Gleeson CJ, Hayne and Heydon JJ.

[130] Butcher and Anor v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592 per Gleeson CJ, Hayne and Heydon JJ at [49] and [51].  

[131] Henville v Walker (2001) 206 CLR 459 per McHugh J at [106]; Hayne J at [163].  

[132] Leda Holdings Pty Ltd v Oraka Pty Ltd (1997) 20 ATPR 41-601 at 40,514 per Branson and Emmett JJ., noting the possible exceptions.

[133] Exhibit 4, page 14.

[134] Exhibit 28, page 8, Note 5.

[135] Exhibit 29.

[136] T295.2.

[137] see par [61] above.

[138] T299.6.

[139] The “Fixtures” were defined as “permanent dwellings and subsequent renovations” – see par [61] above and Third Defence paragraph 1.3.  

[140] Third Defence/Counterclaim paragraph 20; Defence and Counterclaim of Phillip Mueller and Mueller Nominees Pty Ltd paragraph 20.

[141] As was the position of the City Council in L. Shaddock & Associates Pty Ltd v Parramatta City Council (1981) 150 CLR 225.

[142] This is apparent not only from the pleadings, but also from the defendants’ evidence summarized in table form at par [49].

[143] Apart from the asserted duty of care to ensure that each defendant's premises complied with relevant safety standards and a duty not to allow the defendants to occupy premises in breach of Regulation 12 of the Fire and Emergency Regulations, the pleaded duties of care were duties to speak.

[144] See for example Hill v Van Erp (1997) 188 CLR 159 at 175, per Dawson J; Perre v Apand Pty Ltd (1999) 198 CLR 180 at [28] - [30] and [35] - [38] per Gaudron J.   

[145] Rhone-Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 12 FCR 477 at 490, per Bowen CJ, dealing with misrepresentation by silence or concealment. 

[146] Lam v Ausintel Investments Australia Pty Ltd (1989) 97 FLR 458 at 475.3. 

[147] Northern Sandblasting v Harris (1997) 188 CLR 313.

[148] Perre v Apand Pty Ltd (1999) 198 CLR 180 at [118] per McHugh J.  Further as to “vulnerability”, see Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515 at [23] per Gleeson CJ, Gummow, Hayne and Heydon JJ:  “… vulnerability” is to be understood as a reference to the plaintiff’s inability to protect itself from the consequences of a defendant’s want of reasonable care, either entirely or at least in a way which would cast the consequences of loss on the defendant.” 

[149] Exh 31.

[150] T308-9.

[151] Plaintiff’s Reply to Defendants’ Contentions as to Findings, 20 January 2012. 

[152] Exhibit 1, document 66.

[153] Exhibit 1, document 67.

[154] Exhibit 1, document 72.

[155] Exhibit 1, document 74.

[156] In its written submissions (paragraphs 30 to 32) the plaintiff does not rely on the notice of termination dated 26 October 2010.  Paragraph 33 deals with the notices to quit dated 15 December 2010.

[157] See the Table contained in paragraph 41 of the plaintiff’s Closing Submissions.