Nossiter v Hometown Australia Parklea Operations Pty Ltd [2021] NSWCATCD 139

Nossiter v Hometown Australia Parklea Operations Pty Ltd [2021] NSWCATCD 139

The Tribunal had no power to vary the applicant's site fee increase because the site agreement provided for increases by the fixed method within s 65(2)(a)(ii), the 22 November 2020 notice complied with s 66(4) and (5), there was no evidentiary basis to find overpaid site fees under s 68, and s 66(7) prevents challenge under the Act to the agreement terms fixing the method of future site fee increases. Section 74 was unavailable because it is in Part 6 Division 5, which applies to increases by notice otherwise than by a fixed method.

Jurisdiction
Australia
Judgment Date
07 October 2021
Procedural Posture
Application Under the Residential (land Lease) Communities Act 2013 (nsw) Concerning a Residential Site Fee Increase / Final Hearing; Principal Judgment
Outcome
The proceedings are dismissed.
Legal Topics
['increase of Site Fees by Fixed Method' 'tribunal Power to Vary Site Fee Increases' 'residential Site Agreements' 'refund of Overpaid Site Fees']
['leases and Tenancies' 'residential Land Lease Communities' 'civil and Administrative Tribunal Procedure'] ['increase of Site Fees by Fixed Method' 'tribunal Power to Vary Site Fee Increases' 'residential Site Agreements' 'refund of Overpaid Site Fees']

Case Brief

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Procedural Posture

Application Under the Residential (land Lease) Communities Act 2013 (nsw) Concerning a Residential Site Fee Increase / Final Hearing; Principal Judgment

Legal Issues

  1. 1 ["Whether the Tribunal has power to vary the increase in the applicant's site fees set out in the 22 November 2020 notice." "Whether the Tribunal should exercise any power to vary the increase in the applicant's site fees set out in the 22 November 2020 notice."]

Ratio Decidendi

The Tribunal had no power to vary the applicant's site fee increase because the site agreement provided for increases by the fixed method within s 65(2)(a)(ii), the 22 November 2020 notice complied with s 66(4) and (5), there was no evidentiary basis to find overpaid site fees under s 68, and s 66(7) prevents challenge under the Act to the agreement terms fixing the method of future site fee increases. Section 74 was unavailable because it is in Part 6 Division 5, which applies to increases by notice otherwise than by a fixed method.

Court Disposition

The proceedings are dismissed.

Orders

  • ['The proceedings are dismissed.']