Chapman v Nambucca Village Pty Ltd [2021] NSWCATCD 18

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Chapman v Nambucca Village Pty Ltd [2021] NSWCATCD 18 Hearing dates: 5 February 2021 Date of orders: 27 May 2021 Decision date: 27 May 2021 Jurisdiction: Consumer and Commercial Division Before: S Hanstein, General Member Decision: (1)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. (2)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. (3)The reduction in the site fees by an amount of $10 per week is to continue from 5 February 2021 until the site fees are (or were) first increased in accordance with the Residential (Land Lease) Communities Act 2013 after that date. Catchwords: RESIDENTIAL (LAND LEASE) COMMUNITIES – Site fees – Electricity – Where operator ceases on-selling electricity – Whether communal service has been withdrawn – Whether site fees should be reduced Legislation Cited: Residential (Land Lease) Communities Act 2013 (NSW) Cases Cited: Reckless v Silva Portfolios Pty Ltd t/as Ballina Waterfront Village and Tourist Park (No. 2) [2018] NSWCATCD 59 Category: Principal judgment Parties: Roslyn Chapman and Edward Chapman (Applicants) Nambucca Village Pty Ltd (Respondent) File Number(s): RC20/43165 Publication restriction: Nil

reasons for decision 1. The applicant ("Home Owner") seeks orders pursuant to the Residential (Land Lease) Communities Act 2013 ("Act") arising from a dispute about a change in the provider of electricity to their site within the residential community operated by the respondent ("Operator"). 2. Previously electricity had been supplied by the Operator through an embedded electricity network. From February 2020, electricity was supplied to the Home Owner by Humenergy, an electricity retailer authorised to retail electricity within embedded networks. The Home Owner has been subject to higher costs for electricity as a result. 3. The Home Owner claims that the Operator's decision to outsource the supply of electricity was retaliatory conduct contrary to section 56 of the Act, and that cessation of supply of electricity by the operator constituted a breach of their site agreement. The Home Owner seeks orders requiring the Operator to comply with the terms of the site agreement by supplying electricity to them, and seeks compensation in an amount representing the higher electricity costs they have had to pay. Alternatively, the Home Owner seeks an order under section 64 of the Act for their site fees to be reduced.