Blackington Pty Limited v Henderson & 4 Ors [2000] NSWSC 590

Blackington Pty Limited v Henderson & 4 Ors [2000] NSWSC 590

The plaintiff did not establish an error of law. The Tribunal was entitled to consider all the circumstances relevant to whether the plaintiff unreasonably refused consent to the assignment. The finding that keeping a dog may not necessarily be a breach of the site agreement was open on the evidence; one alleged finding could not be located in the Tribunal's reasons; another asserted error was factual rather than legal. The commercial lease authorities were of limited assistance and were not decisive. The Residential Tribunal's decision was therefore affirmed and the appeal dismissed.

Jurisdiction
Australia
Judgment Date
13 July 2000
Procedural Posture
Administrative Law Appeal From Residential Tribunal Decision on a Question of Law Under S 62 of the Residential Tribunal Act 1998 / Supreme Court Judgment on Summons
Outcome
Appeal dismissed; summons dismissed; Residential Tribunal decision affirmed; plaintiff ordered to pay defendants' costs as agreed or assessed.
Legal Topics
['appeal on Question of Law' 'assignment of Residential Site Agreement' 'refusal of Consent to Assignment' 'caravan Park Rules Concerning Pets' 'residential Tribunal Procedure']
['administrative Law' 'residential Tenancy Law'] ['appeal on Question of Law' 'assignment of Residential Site Agreement' 'refusal of Consent to Assignment' 'caravan Park Rules Concerning Pets' 'residential Tribunal Procedure']

Case Brief

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Procedural Posture

Administrative Law Appeal From Residential Tribunal Decision on a Question of Law Under S 62 of the Residential Tribunal Act 1998 / Supreme Court Judgment on Summons

Legal Issues

  1. 1 ['Whether the Residential Tribunal made an error of law in ordering consent to the assignment of the residential site agreement from the Hendersons to the Hoggs.' 'Whether the Tribunal erred in relation to findings about whether the Hoggs would keep a dog on site 240 and whether that would breach the site agreement.' 'Whether the Tribunal erred in finding that dogs had been allowed in the park when there was allegedly no evidence to support that finding.' 'Whether the Tribunal erred by applying Killick v Second Covent Garden Property Co Ltd [1973] 2 All ER 337 rather than Barina Properties v Bernard Hastie (Aust) [1979] NSWLR 480.' 'Whether the Tribunal should have confined the evidence to the time at which consent to assignment was refused.']

Ratio Decidendi

The plaintiff did not establish an error of law. The Tribunal was entitled to consider all the circumstances relevant to whether the plaintiff unreasonably refused consent to the assignment. The finding that keeping a dog may not necessarily be a breach of the site agreement was open on the evidence; one alleged finding could not be located in the Tribunal's reasons; another asserted error was factual rather than legal. The commercial lease authorities were of limited assistance and were not decisive. The Residential Tribunal's decision was therefore affirmed and the appeal dismissed.

Court Disposition

Appeal dismissed; summons dismissed; Residential Tribunal decision affirmed; plaintiff ordered to pay defendants' costs as agreed or assessed.

Orders

  • ['The decision of the Residential Tribunal member, Mr R Tickner dated 13 December 1999 is affirmed.' 'The appeal is dismissed.' 'The summons is dismissed.' "The plaintiff is to pay the defendants' costs as agreed or assessed."]