YBOS Pty Ltd t/as BIG4 Tweed Billabong Holiday Park v Creek [2020] NSWCATAP 284

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: YBOS Pty Ltd t/as BIG4 Tweed Billabong Holiday Park v Creek [2020] NSWCATAP 284 Hearing dates: 18 June 2020 Date of orders: 23 December 2020 Decision date: 23 December 2020 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President M Gracie, Senior Member Decision: (1) The stay order made on 1 April 2020 be lifted. (2) Appeal upheld. (3) Set aside the orders of the Tribunal made on 13 March 2020. (4) The application of the respondent lodged on 21st October 2019 is dismissed. Catchwords: APPEAL — NCAT — fresh evidence - question of law - statutory construction - appeal from decision of Consumer and Commercial Division of NCAT COMMUNITY SCHEME - Residential (Land Lease) Communities Act 2013 (NSW) - residential and tourist sites - age restriction rule for residents - home owner - occupant - whether rule fair and reasonable and clearly expressed - age restrictions for additional occupants - whether rule inconsistent with another Act - anti-discrimination - age discrimination - whether operator under a site agreement provides goods and services - community rules - statutory and other instruments - application of community rule to tourists Legislation Cited: Age Discrimination Act 2004 (Cth) Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Government Information (Public Access) Act 2009 (NSW) Interpretation Act 1987 (NSW) Residential (Land Lease) Communities Act 2013 (NSW) Retirement Villages Act 1999 (NSW) Statutory Instruments Act 1989 (NSW) Strata Schemes Management Act 2015 (NSW) Cases Cited: Cooper v The Owners – Strata Plan No 58068 [2020] NSWCA 250 Evans v Broadlands Relocatable Homes Estate (unreported, RC15/68173, 22 June 2016) Federal Commission of Taxation v Trail Brothers Steel & Plastics Pty Ltd (2010) 186 FCR 410 IW v City of Perth [1997] HCA 30; 191 CLR 1 Murphy v Trustees of Catholic Aged Care Sydney [2018] NSWCATAP 275 Owners of Strata Plan No 3397 v Tate [2007] NSWCA 207 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Texts Cited: None cited Category: Principal judgment Parties: YBOS Pty Ltd t/as BIG4 Tweed Billabong Holiday Park (Appellant) James Creek (Respondent) Representation: Counsel: D Hughes (Appellant) N Eastman (Respondent)