Kincumber Nautical Village Pty Ltd v Morris & Ors [2021] NSWCATAP 275

Kincumber Nautical Village Pty Ltd v Morris & Ors [2021] NSWCATAP 275

A formula for increasing site fees that adds multiple definite components together can be a fixed calculation and therefore a fixed method under ss 65 and 66 of the Residential (Land Lease) Communities Act 2013. The relevant site fee clause allowed the increase in any given year to be calculated or ascertained definitely, so it was not more than one fixed method and did not breach s 66(2). Because the site agreements provided for fee increases by a fixed method, s 66(7) meant the terms were not open to challenge under the Act and the Tribunal lacked jurisdiction to determine the applications.

Jurisdiction
Australia
Judgment Date
14 September 2021
Procedural Posture
Internal Appeal Concerning Residential Land Lease Community Site Fee Increases / Appeal Panel Appeal From Civil and Administrative Tribunal, Consumer and Commercial Division Decision Dated 3 September 2020
Outcome
Appeal allowed; the decisions under appeal were set aside.
Legal Topics
['site Fee Increases' 'fixed Method of Rent Increase' 'fixed Calculation' 'jurisdiction Under S 66(7) of the Residential (land Lease) Communities Act 2013' 'internal Appeals']
['residential Land Lease Communities' 'administrative Law' 'statutory Interpretation' 'consumer Law'] ['site Fee Increases' 'fixed Method of Rent Increase' 'fixed Calculation' 'jurisdiction Under S 66(7) of the Residential (land Lease) Communities Act 2013' 'internal Appeals']

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Procedural Posture

Internal Appeal Concerning Residential Land Lease Community Site Fee Increases / Appeal Panel Appeal From Civil and Administrative Tribunal, Consumer and Commercial Division Decision Dated 3 September 2020

Legal Issues

  1. 1 ['Whether a formula for calculating site fee increases that comprises a number of components falls within the meaning of "a fixed method" in ss 65 and 66 of the Residential (Land Lease) Communities Act 2013.' 'Whether the site agreements provided for fee increases by more than one fixed method in breach of s 66(2) of the Residential (Land Lease) Communities Act 2013.' "Whether s 66(7) of the Residential (Land Lease) Communities Act 2013 precluded the Tribunal from determining the home owners' challenge to the site fee increase terms." 'Whether the Tribunal erred in finding no authority for rounding up site fee increases.' 'Whether the GST component of the site fee increase term was uncertain.']

Ratio Decidendi

A formula for increasing site fees that adds multiple definite components together can be a fixed calculation and therefore a fixed method under ss 65 and 66 of the Residential (Land Lease) Communities Act 2013. The relevant site fee clause allowed the increase in any given year to be calculated or ascertained definitely, so it was not more than one fixed method and did not breach s 66(2). Because the site agreements provided for fee increases by a fixed method, s 66(7) meant the terms were not open to challenge under the Act and the Tribunal lacked jurisdiction to determine the applications.

Court Disposition

Appeal allowed; the decisions under appeal were set aside.

Orders

  • ['Appeal allowed.' 'The decisions made in matter RC 19/47649 and in the other related matters listed in Schedule 1 to that decision are set aside.']