Oakland Ops PL v Morrison [2023] NSWCATAP 134

Oakland Ops PL v Morrison [2023] NSWCATAP 134

The correct interpretation of s 109(5)-(6) of the Residential (Land Lease) Communities Act 2013 (NSW) is that the site fees under a new site agreement must not exceed fair market value, defined as the higher of the seller's current site fee and the site fees currently payable for residential sites of similar size and location within the community. There is no statutory requirement to reduce comparable site fees to a single calculated figure, such as an average. The appeal is allowed, and the case remitted for determination according to this interpretation.

Parties
Appellant: Oakland Ops PL; Respondent: Ian Morrison
Jurisdiction
Australia
Judgment Date
17 May 2023
Procedural Posture
Internal Appeal / Appeal Determination With Remitter
Outcome
Appeal allowed, leave to appeal granted, primary orders set aside with remitter.
Legal Topics
Site Fee Methodology, Statutory Interpretation, Leave to Appeal, Remitter, Fair Market Value
Residential Land Lease Communities Administrative Law Site Fee Methodology Statutory Interpretation Leave to Appeal Remitter Fair Market Value

Case Brief

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Parties

Oakland Ops PL

Appellant

Ian Morrison

Respondent

Procedural Posture

Internal Appeal / Appeal Determination With Remitter

Legal Issues

  1. 1 Proper interpretation of 'fair market value' in s 109(5)-(6) of the Residential (Land Lease) Communities Act 2013 (NSW)
  2. 2 Whether site fees for new site agreement exceed fair market value
  3. 3 Correct methodology for selecting comparable sites for site fee determination

Ratio Decidendi

The correct interpretation of s 109(5)-(6) of the Residential (Land Lease) Communities Act 2013 (NSW) is that the site fees under a new site agreement must not exceed fair market value, defined as the higher of the seller's current site fee and the site fees currently payable for residential sites of similar size and location within the community. There is no statutory requirement to reduce comparable site fees to a single calculated figure, such as an average. The appeal is allowed, and the case remitted for determination according to this interpretation.

Court Disposition

Appeal allowed, leave to appeal granted, primary orders set aside with remitter.

Orders

  • Grant leave to appeal to the extent that leave is required.
  • The appeal is allowed.