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

Transcription

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

2 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)

3 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

4 It s my way or the highway. What is the real problem? The Annuals?.or our unprofessional business management?

5 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

6 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..

7 Case Study Pelican Shores Holiday Park 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

8 The Annuals Palace

9 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

10 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

11 The Winners were The Lawyers..

12 Best eviction & Demolition EVER!

13 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

14 Mr Tomasevic s Investment Property

15 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.

16 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!!!!!

17 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

18 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!

19 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

20 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!

21 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

22 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

23 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

24 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 & setting up as a Form Letter in RMS

25 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)

26 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..

27 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

28 Termination Notice NEVER, EVER File Notice to Vacate in VCAT Residential List Wrong Jurisdiction (Tomasevic v Simmscorp)

29 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.

30 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.

31 OPEN FORUM Only easy questions please!!