Commissioner for Fair Trading v Tschannen & Ors [2004] NSWSC 67

Commissioner for Fair Trading v Tschannen & Ors [2004] NSWSC 67

The defendants' arrangements for boom gate access breached s30 of the Residential Parks Act 1998 because residents were required to produce licences and registration certificates and the anti-passback function limited their capacity to open the gates. The defendants also engaged in an unconscionable course of...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
18 February 2004
Procedural Posture
Common Law Division Proceedings Seeking Declarations, Injunctions and Compensation Concerning Alleged Breaches of the Residential Parks Act 1998 and Fair Trading Act 1987 / Judgment After Hearing
Outcome
Declarations to be made for breaches concerning boom gate access, assignments and interference with sales; other substantive relief refused; counsel to bring in short minutes of order, including as to costs.
Legal Topics
['residential Park Owner Obligations' 'access Through Boom Gates' 'assignment of Residential Site Agreements' 'interference With Sale of Moveable Dwellings' 'quiet Enjoyment' 'rent Receipts' 'compliance With Tribunal Orders' 'unconscionable Conduct' 'misleading or Deceptive Conduct']
['consumer Protection' 'fair Trading' 'residential Parks' 'injunctions' 'declarations'] ['residential Park Owner Obligations' 'access Through Boom Gates' 'assignment of Residential Site Agreements' 'interference With Sale of Moveable Dwellings' 'quiet Enjoyment' 'rent Receipts' 'compliance With Tribunal Orders' 'unconscionable Conduct' 'misleading or Deceptive Conduct']

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Procedural Posture

Common Law Division Proceedings Seeking Declarations, Injunctions and Compensation Concerning Alleged Breaches of the Residential Parks Act 1998 and Fair Trading Act 1987 / Judgment After Hearing

Legal Issues

  1. 1 ["Whether the defendants contravened the Residential Parks Act 1998 by interfering with residents' quiet enjoyment under s20." 'Whether the defendants breached s30 of the Residential Parks Act 1998 by imposing conditions on, or limiting the operation of, boom gate access cards.' 'Whether the defendants unreasonably withheld consent to assignments of residential site agreements and thereby breached implied terms under s41.' 'Whether the defendants interfered with sales of dwellings in breach of s82 of the Residential Parks Act 1998.' 'Whether conduct concerning boom gates, assignments, sales and rent receipts was misleading or deceptive or unconscionable under the Fair Trading Act 1987.' "Whether injunctions should be granted, including appointment of an independent manager and restraints on the first defendant's management of the park." 'Whether compensation or rent suspension should be ordered for residents including Margaret Knight and former residents.']

Ratio Decidendi

The defendants' arrangements for boom gate access breached s30 of the Residential Parks Act 1998 because residents were required to produce licences and registration certificates and the anti-passback function limited their capacity to open the gates. The defendants also engaged in an unconscionable course of conduct concerning assignments, including a policy of never voluntarily consenting to assignments, and breached obligations concerning assignment and sale by imposing or communicating unjustified restrictions, including that dwellings would need to be removed from the park. Those matters warranted declarations, but most other relief was refused because the alleged quiet enjoyment...

Court Disposition

Declarations to be made for breaches concerning boom gate access, assignments and interference with sales; other substantive relief refused; counsel to bring in short minutes of order, including as to costs.

Orders

  • ['Declarations pursuant to paragraph 184 of the judgment concerning breach of s30 of the Residential Parks Act 1998 in relation to boom gate access.' 'Declarations pursuant to paragraph 222 of the judgment concerning breach of the implied term in relation to assignments.' 'Declarations pursuant to paragraph 238 of...