Jenkins v Barrack Point Holdings Pty Ltd [2021] NSWCATCD 72

Jenkins v Barrack Point Holdings Pty Ltd [2021] NSWCATCD 72

The operator's insistence that the applicant obtain probate before taking sale steps was an unreasonable interference with the right to sell the home. The applicant had shown the will identifying him as executor, the Residential (Land Lease) Communities Act 2013 (NSW) includes an executor within the definition of home owner without requiring probate, and the operator's role in the sale did not involve registrable property dealings requiring probate. The proper measure of loss was the site fees incurred during the delay caused by the probate demand, being the period from 21 March 2019 to 3 August 2019, rather than market rental or diminution in sale value.

Jurisdiction
Australia
Judgment Date
02 June 2021
Procedural Posture
Residential Communities Compensation Application Concerning Alleged Interference With Sale of a Home / Principal Judgment After Hearing
Outcome
Application allowed in part; compensation ordered for site fees incurred during the delay caused by unreasonable interference with sale.
Legal Topics
['interference With Right to Sell Home' 'compensation' 'sub Letting Residential Site' "executor's Authority Before Probate" 'site Fees']
['residential Communities' 'consumer and Commercial Law' 'property Law' 'succession Law'] ['interference With Right to Sell Home' 'compensation' 'sub Letting Residential Site' "executor's Authority Before Probate" 'site Fees']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Residential Communities Compensation Application Concerning Alleged Interference With Sale of a Home / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether the community operator unreasonably interfered with the applicant's right to sell the home by refusing to allow sale until probate was obtained." 'If interference was established, what compensation or measure of loss should be awarded.' 'Whether alleged refusal of consent to sub-let supported the claimed loss.']

Ratio Decidendi

The operator's insistence that the applicant obtain probate before taking sale steps was an unreasonable interference with the right to sell the home. The applicant had shown the will identifying him as executor, the Residential (Land Lease) Communities Act 2013 (NSW) includes an executor within the definition of home owner without requiring probate, and the operator's role in the sale did not involve registrable property dealings requiring probate. The proper measure of loss was the site fees incurred during the delay caused by the probate demand, being the period from 21 March 2019 to 3 August 2019, rather than market rental or diminution in sale value.

Court Disposition

Application allowed in part; compensation ordered for site fees incurred during the delay caused by unreasonable interference with sale.

Orders

  • ['The respondent, Barrack Point Holdings Pty Ltd, is to pay the applicant, Lee Jenkins, the sum of $2,845.80 immediately.']