Steve Bartlett LLB – Lawyer & President VicParks Peter Crawford LLB – Lawyer & Industry Legend

VicParks Bulletin Board Length of Annual agreement Posted By: (REMOVED)

Hi all, How is everyone dealing with the new Annual agreement. The fact that it is 10 pages long and needs to be printed off every year of renewal. For us that means 48 Annuals, seems to be an awful lot of paper for something that most people don't take much notice of, except when something goes wrong! I would welcome any suggestions of how to go about minimising this process, but still fulfilling our obligations.

Regards (REMOVED)

“Bloody Annuals……….” They think they own the place

They do what they like

Their visitors cause me grief

They don’t pay enough for the privilege

They are slow payers

Always chasing them for money……

They don’t have any legal rights

“It’s my way or the highway….”

What is the real problem? The Annuals?….or our unprofessional business

management ?

“Annuals have no legal rights…” Australian Consumer Law - 1 Jan 2011

Tribunal can determine unfair contract provisions

Tribunal can determine unconscionable conduct

Tribunal can make certain orders

Tribunal can impose penalties - Damages

But we’ve never had to worry about their rights…….

Competition & Consumer Act 2010 (Cmlth)

Aust Consumer Law & Fair Trading Act (Victoria) 2012

Consumer can commence proceedings…

CAV can commence proceedings….

ACCC can commence proceedings…..

Case Study Pelican Shores Holiday Park - 2004

Gave an Annual 2 years Notice of Eviction

Occupied site for 28 + years

Annual contended the issue of a municipal building permit 25 years PRIOR – 2 owners previously, amounted to an “occupancy right”

Park relied on 4 previous signed Annual Agreements to prove Annual distinct and severable agreement with a start/end date

The Annuals “Palace”

Outcome Listed in the Supreme Court of Victoria

8 months of sleepless nights

Death threats, Vandalism, P & E Damaged

Wife hated me, Kids hated me

We won…..relying on the terms of the Annual Agreements…with a settlement

I Won…… I felt like a Winner!!! Cost $60K in legal fees

Cost $40K to buy the Annual Out as part of the settlement

Cost to the Park business - $100,000 for a $3K Annual Site Return

The Winners were………

The Lawyers…..

Best eviction & Demolition EVER!

A more recent matter? Tomasevic –v- Simmscorp (VCAT 2011)

Listed in Residential Tenancies List

Parties did not have industry advocacy

Listed in WRONG LEGAL JURISDICTION

Tomasevic argued he was a “permanent”

Respondent argued he was an Annual because he paid Annual Fees……

No Annual Holiday Agreement in place

Mr Tomasevic’s Investment Property

VCAT Held In the absence of any formal agreements, a common

law lease held to apply to the site occupied by Tomasevic.

Lease gives exclusive rights to the occupier to the exclusion of all others…..including the park operator

Park could not evict him for a period of 12 months

Hadn’t paid fees to the park since 2010.

Tomasevic v Simmscorp Issued Proceedings in VCAT in 2015/2016

Three separate VCAT hearings…..

Appealed to Supreme Court on 2 occasions from VCAT

Escalated into Criminal Proceedings

Further Appeals to Supreme Court of Appeal

GONE….After 6 years!!!!!

How to protect your business You MUST provide to every Annual - 4 specific

documents EVERY year – VicParks Annual Holiday Agreement

Disclosure Document

Annuals Agreement

Park Rules

Schedule

Templates

Range of Templates available on the VicParks Website

Part 4, Part4A, Annuals, Model Rules etc

Download and compile

Insert your park details on Word docs but do not change, edit or add your own clauses to the PDF’s

VicParks will support you in any dispute where you have used the VicParks documents without alteration & the VicParks documentation is at the centre of the dispute.

Change the documents, you are on your own!

Disclosure Document Outlines essential terms and conditions

Summarises Annual Agreement

Summarises Park Rules

Answers Frequently Asked Questions

Highlights “the small print”

Includes Schedule covering Electricity Fees, Visitors, Insurance, Selling on Site, etc

Annual Agreement Use the recognised industry agreement

Implies standard industry practise in any dispute

Use VicParks Agreement – expect VicParks Support in a dispute

Edit or Amend at YOUR OWN PERIL

If you use your own agreement or operate without an agreement – you WILL NOT be supported by VicParks.

Good luck………for the future!

Park Rules s185 Residential Tenancies Act –whether annuals,

tourist or residential park

Provide copy of your Park Rules

Negates “ignorance” excuse

Use for Minor Breaches

Model Rules on VicParks website

Schedule Sets out your Fees and Charges

Lists the names of registered principals

Lists the names of all additional guests

List car registration numbers

Contact / Next of Kin Details

Consider EFTPos / Direct Debit authority

Annuals Agreements Issue all 4 documents every year

Issue with sufficient notice – minimum 60 days prior to expiration

Send two copies – one for the client, one for you to be signed by the parties and returned to the park ready for your to invoice.

Never refer to the Agreement as a RENEWAL

Each Year Annuals Agreements must be distinct and

severable to give legal effect with a START and END date.

Depending on your formatting, the only document that you may need to change from year to year is the Schedule – your FEES!!

Print & Post the whole document in duplicate not just the invoice as a “Renewal”

Consider Email & setting up as a Form Letter in RMS

Where can I get the templates? Check the VicParks Website – Annuals

Download the Annuals Agreement

Edit the Disclosure Document to suit your park

Edit the Schedule to suit your park

Make sure your Park Rules are current and relevant. (See model rules on website)

And the most asked question to VicParks staff every day?

My Annuals are in arrears. What do I do?

Take Payments Periodically in Advance

Have a Direct Debit Authorisation in place

Act quickly if in arrears…..

The Remedy

Enforce the BREACH & TERMINATION provisions in the VicParks Annual Holiday Agreement.

Terminate the Agreement

Charge nightly Tourist Site Fees

Treat as a commercial debt; or

Treat As Abandoned Property…..make sure you use the Australian Consumer Law not Residential Tenancies

Termination Notice

NEVER, EVER File Notice to

Vacate in VCAT Residential List–

Wrong Jurisdiction (Tomasevic v Simmscorp)

So, if it’s still too hard…..

Ask yourself why are you are in business….?

Then if it’s still too hard….

Consider a career change & get out of our industry…….

A Parky that gets it…..!! Annual Agreement

Posted By: (REMOVED)

Hi (REMOVED), The cost of 10 pages of documentation and administration time is pittance compared to what can result in a legal confrontation. I have over 90 annuals and will never take short cuts. Better safe than sorry. The fact that some people do not read it does not phase me. It is their choice. When "the mud hits the fan" I know I am covered. Highly suggest you spend the time and effort for peace of mind.

OPEN FORUM

Only easy questions please!!