VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
RESIDENTIAL TENANCIES DIVISION
RESIDENTIAL TENANCIES LIST		VCAT REFERENCE NO. R2021/23203
CATCHWORDS	
Whether there is an oral 99 year lease of a Part 4A site or any other Part 4A site agreement capable of assignment; whether a Part 4A site agreement is terminated by the death of the site tenant or occupation of the site by a resident; whether the legal representative of the deceased site tenant can assign the Part 4A site agreement; Residential Tenancies Act 1997 (Vic) ss 207A, 207B, 207D, 207E and 207ZZD; Hobsons Bay Caravan Park Pty Ltd v Cogger [2017] VCAT 630; Matthews v Danepond Pty Ltd [2007] NSWCTTT 451.	

APPLICANT	Donna-Lee Margaret Moore (as legal representative of the estate of Olga Moore)	
RESPONDENT	Palm Lake Resort Pty Ltd t/as Palm Lake Resort Willow Lodge	
WHERE HELD	Melbourne	
BEFORE	K. Knights, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	26 August 2021	
DATE OF SUBMISSIONS	8 and 17 September 2021	
DATE OF ORDER	26 April 2022	
CITATION	Moore v Palm Lake Resort Pty Ltd (Residential Tenancies) [2022] VCAT 448	

OrderS

1.	The Tribunal orders and declares that there is a periodic site agreement between the applicant and the respondent.

2.	The principal registrar is directed to list this matter for hearing before Member Knights on the issue of whether the Part 4A dwelling has a serious defect, allow 3 hours.

K. Knights
Member			

APPEARANCES:		
For Applicant	Ms J Holdstock and Ms N Maynard, solicitors of Holdstock Law	
For Respondent	Mr C Findlay, solicitor of Securitec	

Reasons
The application
1	The applicant brings this proceeding in her capacity as the legal representative of the estate of Olga Moore (deceased). The applicant, Donna-Lee Moore is the grand-daughter of Olga Moore (deceased).
2	The applicant has applied to VCAT under section 206ZZF(1) of the Residential Tenancies Act 1997 (Vic) (RTA) on the basis that:
a.	there is a site agreement governed by Part 4A of the RTA between the applicant and the respondent that is capable of assignment; and
b.	the respondent site owner has unreasonably withheld consent to an assignment.
3	The applicant seeks orders under section 206ZZF(2) of the RTA that the consent of the respondent site owner to an assignment of the site agreement is not required.
4	The site owner is the respondent, Palm Lake Resort Pty Ltd trading as Palm Lake Resort Willow Lodge (Palm Lake Resort).
Background
5	On 15 May 1991, the late Olga Moore purchased a mobile home that was situated at 3 Rustic Drive, Bangholme, Victoria (site) within the Palm Lake Resort for the sum of $38,000. Under the RTA, the mobile home falls within the definition of a Part 4A dwelling.
6	Olga Moore lived in the Part 4A dwelling from in or about May 1991 until her death on 24 June 2012. 
7	When Olga Moore’s health was deteriorating in August 2011, her son Jeffry Moore moved into the Part 4A dwelling to care for her.
8	Jeffry Moore lived in the Part 4A dwelling from in or about August 2011 until his death on 5 October 2020.
9	Following the death of Jeffry Moore, the applicant has paid site fees to Palm Lake Resort. The applicant has never lived at the site. 
10	Letters of administration for the estate of Olga Moore (deceased) were granted to the applicant on 12 January 2021.
11	The applicant alleges that the estate of Olga Moore (deceased) includes the remainder of a 99 year lease of the site between Olga Moore and the site owner, Palm Lake Resort, of which 69 years is remaining (99 year lease).
12	The applicant wishes to assign the remainder of the 99 year lease and sell the Part 4A dwelling to the assignee.
13	Palm Lake Resort denies that there is, or ever has been, a 99 year lease between it and Olga Moore.
14	Palm Lake Resort do not deny that Olga Moore was a site tenant of a Part 4A site under a site agreement with Palm Lake Resort until Olga Moore’s death.
15	However, Palm Lake Resort submits that its site agreement with Olga Moore “expired” upon Olga Moore’s death or was terminated by Jeffry Moore’s occupation of the site as a resident or by the operation of sections 207A, 207B or 207D of the RTA.
16	Further, Palm Lake Resort submits that even if there is a site agreement then it is reasonable to refuse consent to an assignment of that site agreement because the Part 4A dwelling contains “serious defects.” The applicant denies that the Part 4A dwelling contains serious defects. The parties have agreed that this issue will be dealt with separately following these reasons.
17	Finally, Palm Lake Resort submits that this application is premature because the applicant has not provided details of the proposed assignee. The applicant submits that she cannot advertise the site agreement for assignment when its existence is disputed by Palm Lake Resort.
Issues
18	I must determine the following issues:
a.	Is there a site agreement between the applicant and Palm Lake Resort that is capable of assignment?
b.	Has Palm Lake Resort unreasonably withheld its consent to the assignment of the site agreement?
Hearing and submissions
19	On 26 August 2021, I heard evidence from the applicant and the applicant was cross-examined by the solicitor for Palm Lake Resort. The applicant tendered documents into evidence, including but not limited to:
a.	The deed dated 15 May 1991 between Olga Moore and Mr Rankin wherein Olga Moore purchased the Part 4A dwelling (Rankin deed).
b.	Letter from Palm Lake Resort dated 22 February 2001 certifying that a different site within the Palm Lake Resort comes with a 99 year lease that commences at the time the resident/owner of the unit takes up residence in the unit or pays the previous owner the full monies required at settlement date. 
20	Palm Lake Resort did not give any evidence at the hearing on 26 August 2021. Although Palm Lake Resort’s executive manager people and operations, Amanda Clements, did respond to queries from the member.
21	At the conclusion of the evidence, I determined that, on the balance of probabilities, I was not satisfied that there was a 99 year lease. The applicant’s solicitor submitted that even if the applicant was not successful in establishing a 99 year lease there was still a site agreement capable of assignment. This was disputed by Palm Lake Resort. 
22	On 26 August 2021, I made orders for the parties to make submissions on the law on issues other than the factual issue of serious defects. I adjourned the hearing part heard before me for the purpose of those submissions and noted that following the determination of the issues it was anticipated that a further hearing would be scheduled to determine whether there are serious defects in the Part 4A dwelling.
23	Both parties attached further documents to their legal submissions that were not admitted into evidence at the hearing or the subject of cross-examination. Having read the additional documents and considered the fairness of relying upon those documents without cross-examination, I have determined that I am not relying upon any of those documents as proof of facts in issue.
The 99 year lease
24	The applicant relies upon the following in support of her contention that there was a 99 year lease between Olga Moore and Palm Lake Resort:
a.	The sum of $38,000 paid by Olga Moore under the Rankin deed was equivalent to the cost of buying a freehold permanent residence at the time.
b.	Olga Moore frequently and with great pride referred to the 99 year lease.
c.	There is evidence of Palm Lake Resort granting 99 year leases in respect of other sites.
d.	In October 2018, being a date well after the passing of Olga Moore, Palm Lake Resort sent a notice of rent increase addressed to the estate of Olga Moore as the site tenant (2018 Notice of rent increase). This document was not put into evidence at the hearing but attached to the applicant’s submissions. Palm Lake Resort say it was addressed in error.
25	The applicant must prove its case to the standard of the balance of probabilities. I find that there is insufficient evidence for me to be satisfied that there was a 99 year lease for the following reasons:
a.	It is plain from the terms of the Rankin deed that: 
i.	the sum of $38,000 was paid for the Part 4A dwelling only; and
ii.	Mr Rankin grants no transfer or assignment of any contractual rights currently held or enforceable by Mr Rankin as against the site owner.
b.	Ultimately, the only evidence of a 99 year lease is that Olga Moore frequently and with great pride referred to the 99 lease. This is hearsay evidence. But, even accepting that this is what Olga Moore believed and stated, I find that it is equally possible that Olga Moore was a victim of a misrepresentation or simply misunderstood or assumed that there was a 99 year lease. Consequently, I am unpersuaded by this evidence.
c.	The fact that there is a letter evidencing a 99 year lease granted by Palm Lake Resort for another site within the resort is consistent with Palm Lake Resort granting 99 year leases in respect of certain sites but also indicates that there should be written evidence of the alleged 99 year lease. In this case, there is no written evidence associated with the grant of a 99 year lease for 3 Rustic Drive, Bangholme to Olga Moore when she purchased her Part 4A dwelling. The letter evidencing the grant of long term leases for other sites does not prove that Palm Lake Resort entered into a 99 year lease of the site with Olga Moore.
d.	The 2018 notice of rent increase is consistent with there being a 99 year lease but is not evidence of there being a 99 year lease. 
e.	The 2018 notice of rent increase is equally consistent with a periodic site agreement.
26	In this case, Palm Lake Resort’s executive manager people and operations, Amanda Clements, advised that a search for a hard copy file and electronic file for the 99 year lease had been conducted and the only document that could be found was the advice of Jeffry Moore’s passing in October 2020.
The law on site agreements
27	When Olga Moore took possession of the Part 4A dwelling at the Palm Lake Resort in 1991 the relevant legislation was the Caravan Parks and Movable Dwellings Act 1988 (Vic) (CPMD Act).
28	There was no requirement under the CPMD Act for there to be a written site agreement. The CPMD Act provided that: “a caravan park owner and a caravan owner may enter into an agreement specifying the terms and conditions of the occupancy of a site by a caravan.”
29	Part 1 of the RTA commenced operation on 23 December 1997. On 1 September 2011, Part 4A came into effect and governed Part 4A site agreements. Accordingly, Olga Moore was alive when the RTA commenced regulating the contractual relationships between caravan park owners and caravan park residents.
30	From 1 September 2011 the RTA has required that site agreements be in writing. However, the RTA expressly provides that the fact that a site agreement is not in writing does not:
a.	make the site agreement illegal, invalid or un-enforceable or
b.	affect the application of the RTA to the site agreement.
31	The RTA provides that a site agreement means an agreement under which a person lets land as a Part 4A site for the purposes of the occupation of a Part 4A dwelling on that land by the Part 4A dwelling owner as a residence.
32	Given that Olga Moore was letting land at the Palm Lake Resort for the purposes of the occupation of her Part 4A dwelling on that land as a residence, I am satisfied that there was a site agreement between Olga Moore and the Palm Lake Resort (Olga Moore site agreement)
33	The applicant says that the Olga Moore site agreement continues between the applicant as the administrator of Olga Moore’s deceased estate and Palm Lake Resort.
34	Palm Lake Resort says that the Olga Moore site agreement has expired by reason of the following:
a.	the death of Olga Moore; and/or
b.	Jeffry Moore’s residence at the site.
Consideration of the impact of the death of Olga Moore on the Olga Moore site agreement 
35	At the time of Olga Moore’s death, Division 3A of Part 6 of the RTA provided for termination of site agreements in Part 4A parks. Section 317A provided that “Despite any Act or law to the contrary, a site agreement does not terminate and must not be terminated except in accordance with [Division 3A of Part 6] or Part 7 or 8”.
36	Notably, while there was an express provision of the Act that provided for the termination of a tenancy agreement after the death of the sole tenant, there was no provision in Division 3A of Part 6, or in Part 7 or 8 of the RTA, for termination of site agreements in Part 4A parks upon the death of the sole site tenant. 
37	On 29 March 2021, the RTA was amended. The amendments included the relocation of Division 3A of Part 6 of the RTA for termination of site agreements in Part 4A parks to Division 11 and the re-numbering of sections. However, there was no substantive change to the content of the provisions in relation the termination of site agreements in Part 4A parks.
38	In the absence of a provision in the RTA for termination of a site agreement after the death of the sole site tenant, I find guidance from the general law in relation to the passing of the deceased’s interest in contracts. The general law provides that a personal representative may enforce any contract that the deceased was entitled to enforce.
39	Accordingly, upon her death, Olga Moore’s interest under the Olga Moore site agreement will form part of Olga Moore’s personal estate and vest in her executor or administrator.
40	However, Palm Lake Resort submits that it is not possible for a site agreement to operate between the applicant as personal legal representative following the death of Olga Moore and Palm Lake Resort because of the references to a “person” in the RTA and that the provisions of the RTA were drafted to relate to rights and obligations that are personal to site tenants. It is submitted that if the legislature intended otherwise then it would have included the words “site tenant’s heirs, executors, administrators and assigns” or words to similar effect (statutory construction argument).
41	I consider that to determine this case in Palm Lake Resort’s favour on the basis of the statutory construction argument would fall foul of the presumption that legislation does not interfere with vested proprietary interests: Clissold v Perry (1904) 1 CLR 363 at 373. I do not consider that it is sufficiently clear from the drafting in the RTA that the legislature intended to preclude the site agreement forming part of Olga Moore’s personal estate and vesting in her administrator. Had the legislature intended to interfere with those proprietary interests, it could have included provisions which terminated the site agreement following death, as has occurred for residential tenancies. Part 4A was clearly introduced to address concerns that a Part 4A dwelling is often the principal or major asset for a site tenant and is not one that can be easily removed from a Part 4A site. Hence, a degree of security relating to the site agreement is an essential aspect of ownership of a Part 4A dwelling. It seems likely that Parliament would have intended the site agreement to vest in the estate of a deceased site tenant for the purposes of sale of that major asset.
Consideration of the impact of Jeffry Moore’s residence at the site on the Olga Moore site agreement 
42	Palm Lake Resort submits, in the alternative, that the Olga Moore site agreement is terminated by Jeffry Moore’s residence at the site.
43	Jeffry Moore co-habited in the Part 4A dwelling with Olga Moore from approximately August 2011 to 24 June 2012 and as the sole occupant of the Part 4A dwelling from 24 June 2012 to Jeffry Moore’s death on 5 October 2020.
44	Jeffry Moore never became the owner of the Part 4A dwelling and consequently never became a site tenant.
45	Having occupied the site as his main residence for more than 60 consecutive days following Olga Moore’s death on 24 June 2012, Jeffry Moore became a “resident” of the Palm Lake Resort within the meaning of the RTA.
46	Palm Lake Resort submits that Jeffry Moore’s residency of the site between 24 June 2012 until his death on 5 October 2020 had the effect of terminating the Olga Moore site agreement. However, no authority is provided for this proposition.
47	There is not, and never has been, a provision in Division 3A or Part 7 or 8 that specifies a site agreement terminates by reason of a site tenant co-habiting with another person at the site or a resident occupying the site. Section 317F of the RTA provides that a site agreement terminates if the site tenant is not in possession, occupation or use of the site because the site tenant has sub-let it and the site owner or site tenant gives a notice to vacate or notice of intention to vacate. However, I find the sub-letting provision inapplicable because Olga Moore did not sublet the site to Jeffry Moore and neither a notice to vacate nor a notice of intention to vacate was ever given.
48	Accordingly, I do not find that Jeffry Moore’s residency of the site between 24 June 2012 until his death on 5 October 2020 had the effect of terminating the Olga Moore site agreement.
Palm Lake Resort’s arguments that Olga Moore’s site agreement has terminated by reason of the RTA provisions in relation to termination of site agreements
49	Palm Lake Resort have relied upon the provisions in the current RTA that became effective on 29 March 2021 by the Residential Tenancies Amendment Act 2018 as terminating the site agreement. I have considered those provisions, although in my view it is the provisions that applied at the time of death of Olga Moore that are applicable. The substance of the provisions is the same. It is only the numbering of those provisions that has changed. 
50	Palm Lake Resort rely upon the following provisions in Division 11 of the RTA as terminating the site agreement: sections 207A, 207B and 207D. Each of those is considered separately below.
51	Section 207A: a site agreement may be terminated by agreement of the site owner and site tenant. Palm Lake Resort submits it was an oral term of the site agreements at the Palm Lake Resort that the site tenant’s rights to reside under the site tenancy agreement would expire when they left the caravan park. This argument and the evidence in support of it was not put at the hearing. It was introduced in submissions and the applicant has not had a chance to respond. I do not rely upon this newly introduced evidence. However, I note that together with the applicant’s evidence of 99 year leases at Palm Lake Resort, the evidence demonstrates that Palm Lake Resort entered into a variety of site agreements and that evidence of the terms of a site agreement between Palm Lake Resort and a site tenant do not prove the terms of the site agreement between Palm Lake Resort and Olga Moore. In fact, the variety exposes the danger in assuming the terms of the site agreement between Palm Lake Resort and Olga Moore on the basis of other site agreements. Further, the evidence of the applicant was that Olga Moore frequently and with great pride referred to having a 99 year lease. Accordingly, I do not find that the Olga Moore site agreement is terminated on this ground.
52	Section 207A: a site agreement may be terminated by agreement of the site owner and site tenant. Palm Lake Resort submits that there was termination by agreement under section 207A by reason of Palm Lake Resort and Olga Moore permitting Jeffry Moore to reside at the site. I find that there is no evidence of Olga Moore’s alleged agreement for the Olga Moore site agreement to terminate upon her son Jeffry Moore residing at the site. Further, I find that this ground is contradicted by the evidence of Olga Moore’s belief that she held a 99 year lease. Accordingly, I do not find that the Olga Moore site agreement is terminated on this ground.
53	Section 207B: a site agreement terminates if the site tenant vacates the Part 4A site with the consent of the site owner. Palm Lake Resort submits that the site agreement was terminated by consent under section 207B by reason of Olga Moore vacating the site as a result of her death. It is evident that the purpose of section 207B is for a site tenant to vacate after having obtained the consent of the site owner. There is no evidence that, prior to her death, Olga Moore sought the consent of the site owner to vacate or that such consent was in fact provided. Further, whilst Olga Moore died in 2012, Olga Moore’s Part 4A dwelling remains on the site and Palm Lake Resort continue to accept monthly site fees in respect of the Part 4A dwelling. In those circumstances, I do not consider it reasonable or fair for Palm Lake Resort to now submit that Olga Moore vacated the site with their consent upon her death in 2012. Accordingly, I do not find that the Olga Moore site agreement is terminated on this ground.
54	Sections 207D: a site agreement terminates if the site tenant abandons the Part 4A site. I find that there is no evidence that Olga Moore ever left the site without an intention of returning. Rather, she died while residing there. Further, I find that this ground is contradicted by the evidence of Olga Moore’s belief that she held a 99 year lease. Accordingly, I do not find that the Olga Moore site agreement is terminated on this ground.
55	Palm Lake Resort also submits that it would be unreasonable to find that the Olga Moore site agreement remains in place for nine years following her death and whilst Jeffry Moore resided at the site. On the contrary, I find it unreasonable that Palm Lake Resort raised no issues in relation to the Olga Moore site agreement until the applicant sought the consent of Palm Lake Resort to the assignment of the Olga Moore site agreement (albeit that the applicant submits the Olga Moore site agreement is a 99 year lease) and now seeks to submit that the Olga Moore agreement was terminated in 2012 by agreement, consent, vacation or abandonment. Palm Lake Resort accepted the monthly site fees from Jeffry Moore and Olga Moore’s deceased estate and continue to do so whilst alleging there is no Olga Moore site agreement and hasn’t been such an agreement since 2012. Palm Lake Resort issued a rent increase notice in 2018 to the Estate of Olga Moore, in recognition of the site agreement remaining in existence. 
Categorisation of the Olga Moore site agreement
56	Having found against Palm Lake Resort in all of its arguments in favour of the Olga Moore site agreement terminating, I find that the Olga Moore site agreement is continuing and regulated by the RTA as amended by the Residential Tenancies Amendment Act 2018 (Vic).
57	Given that the Olga Moore site agreement commenced in or about June 1991 and that there is no written record of its terms, I do not find that it is a fixed term site agreement.
58	Under section 207K(1) of the RTA, a site tenant is taken to occupy a Part 4A site under a periodic site agreement if-
a.	the term of a fixed term site agreement ends; and
b.	the site tenant under that agreement continues in occupation of the Part 4A site otherwise than as a site tenant under a fixed term site agreement.
59	The site tenant was Olga Moore and upon her passing it was Jeffry Moore that lived in the Part 4A dwelling and upon his passing it is the applicant as administrator of Olga Moore’s deceased estate that seeks to assert the right of Olga Moore to assign the Olga Moore site agreement. 
60	In the following circumstances, I consider it reasonable to conclude that the Olga Moore site agreement is a periodic site agreement that is capable of assignment notwithstanding that Olga Moore ceased in her physical occupation of the site in 2012:
a.	the Olga Moore site agreement has not been terminated in accordance with the RTA;
b.	the Olga Moore site agreement has vested in the applicant as administrator of Olga Moore’s deceased estate;
c.	no complaint was made by Palm Lake Resort as to Jeffry Moore’s occupation of the site in the eight years that he lived in the Part 4A dwelling following Olga Moore’s passing;
d.	Palm Lake Resort did not make any independent agreement with Jeffry Moore in relation to his occupation of the site; 
e.	Palm Lake Resort issued a rent increase notice in 2018 to the Estate of Olga Moore, in recognition of the site agreement remaining in existence. 
f.	Palm Lake Resort made no complaint about the Part 4A dwelling until the applicant sought Palm Lake Resort’s consent to the assignment of the site agreement; and
g.	Palm Lake Resort continue to accept the applicant’s payment of site fees for the occupation of the Part 4A dwelling at the site.
Has Palm Lake Resort unreasonably withheld its consent to the assignment of the site agreement?
61	Palm Lake Resort submits that it is not unreasonable for it to withhold consent when the applicant has not nominated a proposed assignee.
62	Now that the issue between the parties as to whether there is a site agreement between the applicant and Palm Lake Resort that is capable of assignment has been resolved, the applicant can advertise the Olga Moore site agreement for assignment and the Part 4A dwelling for purchase. Assuming there is a positive response, the applicant can give the details of the proposed assignee to Palm Lake Resort for consideration. Whilst it is premature for the Tribunal to consider this issue now, I do not consider this application to have been prematurely issued given the need for the Tribunal to resolve the issue of whether there is a site agreement capable of assignment. 
63	Palm Lake Resort allege that the Part 4A dwelling has a serious defect. This is disputed by the applicant.
64	Section 206ZZD(1D) of the RTA provides that a site owner may reasonably refuse consent to an assignment of a site agreement if the Part 4A dwelling being sold has a serious defect and no undertaking has been given to the site owner to rectify the defect.
65	A further hearing will be scheduled for evidence on the issue of whether the Part 4A dwelling contains a serious defect. 
K. Knights
Member