PALM LAKE RESORT P/L v KING and METCALFE [2021] NSWCATAP 195

PALM LAKE RESORT P/L v KING and METCALFE [2021] NSWCATAP 195

A site agreement clause that provides for site fee increases by 'CPI or 3/3.5% whichever is the greater' provides more than one fixed method, contrary to s 66(2) of the Residential (Land Lease) Communities Act 2013 (NSW), as a 'fixed method' must constitute one calculation, not a set of alternative calculations. The Tribunal did not err in law in so finding or in granting the relief ordered.

Parties
Appellant: Palm Lake Resort PL; First Respondent: Richard Lounder Thomas Metcalfe; Second Respondent: Victor Leopold Rjin; Third Respondent: Robert James Woolnough; Fourth Respondent: Barbara Ann Woolnough; Fifth Respondent: Peter Connell; Sixth Respondent: Valerie Connell; Seventh Respondent: James Edward Sullivan; First Respondent: Ian King; Second Respondent: Coral Smith; Third Respondent: Arthur Smith; Fourth Respondent: Douglas Blackman; Fifth Respondent: Sylvia Parker; Sixth Respondent: Patricia Blackburn; Seventh Respondent: Michael Menken
Jurisdiction
Australia
Judgment Date
30 June 2021
Procedural Posture
Internal Appeal From Civil and Administrative Tribunal, Consumer and Commercial Division / Appeal Panel Decision
Outcome
Appeals dismissed
Legal Topics
Site Fee Increases, Statutory Interpretation, Residential (land Lease) Communities Act 2013 (nsw), Refunds of Overpaid Site Fees, Procedures for Site Fee Increases, Appeals on Question of Law
Residential Tenancies Administrative Law Site Fee Increases Statutory Interpretation Residential (land Lease) Communities Act 2013 (nsw) Refunds of Overpaid Site Fees Procedures for Site Fee Increases Appeals on Question of Law

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Parties

Palm Lake Resort PL

Appellant

Richard Lounder Thomas Metcalfe

First Respondent

Victor Leopold Rjin

Second Respondent

Robert James Woolnough

Third Respondent

Barbara Ann Woolnough

Fourth Respondent

Peter Connell

Fifth Respondent

Valerie Connell

Sixth Respondent

James Edward Sullivan

Seventh Respondent

Ian King

First Respondent

Coral Smith

Second Respondent

Arthur Smith

Third Respondent

Douglas Blackman

Fourth Respondent

Sylvia Parker

Fifth Respondent

Patricia Blackburn

Sixth Respondent

Michael Menken

Seventh Respondent

Procedural Posture

Internal Appeal From Civil and Administrative Tribunal, Consumer and Commercial Division / Appeal Panel Decision

Legal Issues

  1. 1 Whether a site agreement providing for site fee increases by 'CPI or 3/3.5% whichever is the greater' provides more than one fixed method in contravention of s 66(2) of the Residential (Land Lease) Communities Act 2013 (NSW)
  2. 2 Whether the Tribunal erred in its construction and application of ss 65(2) and 66(2) of the Act
  3. 3 Whether s 157 of the Act was properly applied to make the orders in question

Ratio Decidendi

A site agreement clause that provides for site fee increases by 'CPI or 3/3.5% whichever is the greater' provides more than one fixed method, contrary to s 66(2) of the Residential (Land Lease) Communities Act 2013 (NSW), as a 'fixed method' must constitute one calculation, not a set of alternative calculations. The Tribunal did not err in law in so finding or in granting the relief ordered.

Court Disposition

Appeals dismissed

Orders

  • Appeals dismissed.
  • Submissions and evidence in support of any costs application are to be lodged with the Appeal Registry and given to the other party(ies) within 14 days of publication of these orders.