Marsh v Pines Resort Management Pty Ltd [2021] NSWCATCD 127

Marsh v Pines Resort Management Pty Ltd [2021] NSWCATCD 127

The proposed $12.50 per week site fee increase was excessive because the major claimed sewerage and pumping station costs were repairs and improvements rather than recurring outgoings and operating expenses. The established increase in outgoings and operating expenses was $42,731.90, equivalent to $6.85 per site per week. Balancing that amount with the operator's substantial sewerage and pump house upgrade costs, the condition of the roads, and the percentage increase compared with CPI, the Tribunal allowed only a $9.00 per week increase from 20 January 2021.

Jurisdiction
Australia
Judgment Date
06 September 2021
Procedural Posture
Application Under S 71 of the Residential (land Lease) Communities Act 2013 (nsw) Challenging a Residential Land Lease Community Site Fee Increase as Excessive / Principal Judgment After Hearing
Outcome
Application allowed in part; the claimed site fee increase was declared excessive and a lower maximum increase was ordered.
Legal Topics
['site Fee Increase' 'excessive Rent Increase' 'outgoings and Operating Expenses' 'repairs and Improvements' 'residential Community Operator Expenses']
['residential Land Lease Communities' 'consumer and Commercial Law'] ['site Fee Increase' 'excessive Rent Increase' 'outgoings and Operating Expenses' 'repairs and Improvements' 'residential Community Operator Expenses']

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Procedural Posture

Application Under S 71 of the Residential (land Lease) Communities Act 2013 (nsw) Challenging a Residential Land Lease Community Site Fee Increase as Excessive / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether the respondent's proposed increase in site fees of $12.50 per week was excessive under the Residential (Land Lease) Communities Act 2013 (NSW)." 'Whether costs for a s 64 contribution and upgrading a pumping station were outgoings and operating expenses or repairs and improvements.' 'What order should be made about the permissible site fee increase.']

Ratio Decidendi

The proposed $12.50 per week site fee increase was excessive because the major claimed sewerage and pumping station costs were repairs and improvements rather than recurring outgoings and operating expenses. The established increase in outgoings and operating expenses was $42,731.90, equivalent to $6.85 per site per week. Balancing that amount with the operator's substantial sewerage and pump house upgrade costs, the condition of the roads, and the percentage increase compared with CPI, the Tribunal allowed only a $9.00 per week increase from 20 January 2021.

Court Disposition

Application allowed in part; the claimed site fee increase was declared excessive and a lower maximum increase was ordered.

Orders

  • ['The claimed increase in site fees of $12.50 per week is excessive.' 'The site fees for each affected home owner must not exceed $9.00 per week from 20 January 2021.']