Chapman v Nambucca Village Pty Ltd [2021] NSWCATCD 18

Chapman v Nambucca Village Pty Ltd [2021] NSWCATCD 18

The Operator's previous on-sale of electricity through the embedded network was a communal service provided when the site agreement was entered into. By ceasing to on-sell electricity and replacing it with supply by an external retailer on different terms, including a daily supply charge that increased the Home Owner's costs by about $10 per week, the Operator withdrew or substantially reduced that service within the meaning of section 64. It was appropriate to reduce site fees by $10 per week from 5 February 2020 to 5 February 2021, require payment of $520, and continue the reduction from 5 February 2021 until the site fees were first increased in accordance with the Act after that date.

Jurisdiction
Australia
Judgment Date
27 May 2021
Procedural Posture
Application Under the Residential (land Lease) Communities Act 2013 (nsw) Concerning Site Fees, Electricity Supply, Alleged Breach of Site Agreement and Retaliatory Conduct / Principal Judgment After Hearing
Outcome
Application allowed in part; site fees reduced and monetary payment ordered.
Legal Topics
['reduction of Site Fees' 'withdrawal or Substantial Reduction of Communal Service' 'on Selling Electricity Through Embedded Network' 'retaliatory Conduct' 'site Agreement Obligations']
['residential Land Lease Communities' 'consumer and Commercial' 'utilities'] ['reduction of Site Fees' 'withdrawal or Substantial Reduction of Communal Service' 'on Selling Electricity Through Embedded Network' 'retaliatory Conduct' 'site Agreement Obligations']

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Procedural Posture

Application Under the Residential (land Lease) Communities Act 2013 (nsw) Concerning Site Fees, Electricity Supply, Alleged Breach of Site Agreement and Retaliatory Conduct / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether the Operator's cessation of on-selling electricity and engagement of Humenergy meant a communal facility or service provided when the site agreement was entered into had been withdrawn or substantially reduced for the purposes of section 64 of the Residential (Land Lease) Communities Act 2013 (NSW)." 'Whether the site fees payable by the Home Owner should be reduced, and by what amount and for what period.' 'Whether the Operator breached the site agreement by ceasing to supply electricity to the Home Owner.' 'Whether the Operator engaged in retaliatory conduct contrary to section 56 of the Residential (Land Lease) Communities Act 2013 (NSW).']

Ratio Decidendi

The Operator's previous on-sale of electricity through the embedded network was a communal service provided when the site agreement was entered into. By ceasing to on-sell electricity and replacing it with supply by an external retailer on different terms, including a daily supply charge that increased the Home Owner's costs by about $10 per week, the Operator withdrew or substantially reduced that service within the meaning of section 64. It was appropriate to reduce site fees by $10 per week from 5 February 2020 to 5 February 2021, require payment of $520, and continue the reduction from 5 February 2021 until the site fees were first increased in accordance with the Act after that date.

Court Disposition

Application allowed in part; site fees reduced and monetary payment ordered.

Orders

  • ['The site fees payable by the Home Owner under the site agreement are reduced by an amount of $10 per week from 5 February 2020 to 5 February 2021.' 'To give effect to order (1) above, the Operator is to pay to the Home Owner the sum of $520 within 14 days of the date of this decision.' 'The reduction in the site...