Hastings Point Holiday Park: Closure
Hastings Point Holiday Park was once a thriving residential park nestled between the Tweed Coast Road and Cudgera Creek. That changed in 2006 when the park owner discussed gradual closure and redevelopment of the park to a luxury retirement living complex.
The park owner held meetings with the residents and made promises about their future in return for their support for the development application. The home owners who lived on the creek were told they would have the right to live on in their current homes or have an option to buy a home in the new development at a reduced price. None of these eventuated. Instead, home owners had their agreements terminated and, in order to win reasonable compensation, they would have to fight seven lots of proceedings in six courts and tribunals over a period of five years. Here is their story.
The development and the developers
On 14 May 2007 development consent was given for a staged seniors living development. The new development would comprise 84 independent living units, 94 supported living units and 67 beds within a high care facility.
During 2009, the development commenced and stage one of the seniors living complex was completed. Then the global financial crisis hit and the developers, PDK Developments Ltd, were in financial difficulty.
By 2011 Hastings Point Holiday Park had been purchased by TriCare Ltd, an aged care provider. Knowing that the home owners still living at the park would have to be compensated, TriCare negotiated a reduction in the purchase price ($28,000,000) to create a compensation fund of $1,500,000.
Under the Residential Parks Act 1998 home owners who had their agreements terminated because their site was to be used for another purpose were entitled to compensation. TriCare initially offered small amounts of compensation to home owners and has since spent significant sums on legal proceedings to keep the compensation payments low.
Termination of site agreements
From 2011 TriCare started reducing and removing services and facilities in the park. Some home owners accepted offers of compensation and left. In May 2012 termination notices were served on the remaining eight home owners. In May 2013 TriCare commenced proceedings in the Consumer Trader and Tenancy Tribunal or CTTT to terminate their site agreements and gain vacant possession of the sites.
Land and Environment Court
The home owners disputed the terminations on the grounds that the sites they occupied were never to be developed and they should therefore be able to remain. Before the Tribunal made a decision on termination TriCare applied to the NSW Land and Environment Court seeking a declaration that there was to be a change of use of the land, and a date that the change of use would occur. The Court ruled that the land was to be used for a purpose other than residential sites no later than 20 September 2016. These declarations enabled the site agreements to be terminated.
Back to the Tribunal
At the end of 2013 the home owners were back at the Tribunal (which on 1 January 2014 became the NSW Civil and Administrative Tribunal – NCAT).
In September 2014 the Tribunal terminated the site agreements and awarded small amounts of compensation to the home owners. The compensation was awarded for relocation, however none of the home owners had sites to which they could relocate.
The home owners legal representatives lodged an appeal of the Tribunal’s decision with the Common Law Division of the NSW Supreme Court. Seventy-five-year-olds Bob Verrills and his wife Helen were worn down by the protracted proceedings. Both suffered from ill health and stress. They decided to settle their matter with TriCare on the eve of the Supreme Court case in March 2015.
In April 2015 the Supreme Court set aside the orders made by the Tribunal. The Court found the Tribunal had erred in law by concluding that an order for termination could be made where no relocation of the homes was to occur. The Supreme Court ordered the Tribunal to re-hear the matters.
Court of Appeal
While the matters were back at the Tribunal, and when the home owners sought to rely on parts of the decision of the Supreme Court judge, TriCare decided to appeal to the NSW Court of Appeal. To the delight of the home owners the Court of Appeal dismissed the TriCare appeal as incompetent.
Following this there was a further exchange of offers to settle. However, TriCare did not offer enough to enable home owners to purchase a home elsewhere, so they had no choice – they had to hang on and fight for better compensation.
When the matters went back to NCAT an order was made for the parties to attend compulsory mediation, which was held at the Murwillumbah Courthouse in December 2016. The mediation narrowed the issues in dispute but did not avoid the need for a hearing. Again NCAT awarded low levels of compensation to the home owners (for some it was lower than had previously been awarded) so they appealed again.
During the five year battle for decent compensation not only had the CTTT become NCAT, residential parks law had also changed and this turned out to be beneficial to the home owners. In 2016 the NCAT Appeal Panel found that they were entitled to make new applications for compensation under the Residential (Land Lease) Communities Act 2013. As a result of this decision all home owners were awarded a five figure sum to relocate (without their homes) and four of them were able to reach final settlement with TriCare. In April 2017 these four each accepted six figure sums of compensation.
The last stand
Judy Tucker and Beryl Anderson are the only remaining home owners at TriCare Hastings Point Holiday Park and in May this year they had another two-day hearing at NCAT regarding the amount of compensation they should receive.
The message from Judy is that “People need to be made aware of what has happened to us here at Hastings Point. The new legislation is there to protect vulnerable residents like us and I do hope no other residential community home owners have to go through what we had to endure over the course of the past five years”.
The home owners are unanimous in their belief that the money TriCare has spent on legal proceedings could have been given to them in compensation and the matters could have settled far sooner!
The home owners stress the importance of getting good legal advice and assistance in situations like this. They acknowledge that they couldn’t have got the outcomes they did without the work of solicitor Paul Smyth from the Tenants’ Union and barristers Michelle McMahon and Brett Walker SC. They were able to stay the course due to the assistance of the grants division of Legal Aid. Judy recognised the importance of this assistance when she said “While we will now have a significant final financial contribution to pay to Legal Aid, we have money to put towards buying our new home. Without the legal advice and assistance we got we would have been lost.”
As we go to print Judy and Beryl are waiting for the decision of NCAT. They hope it is positive so they can finally have closure.