Nossiter v Hometown Australia Parklea Operations Pty Ltd [2021] NSWCATCD 139

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Nossiter v Hometown Australia Parklea Operations Pty Ltd [2021] NSWCATCD 139 Hearing dates: 5 October 2021 Date of orders: 11 October 2021 Decision date: 07 October 2021 Jurisdiction: Consumer and Commercial Division Before: G Blake AM SC, Senior Member Decision: (1) The proceedings are dismissed. Catchwords: LEASES AND TENANCIES — Legislation protecting tenants — Residential (Land Lease) Communities Act 2013 (NSW) – whether the Tribunal has power to vary the increase in the site fees under a site agreement which provides for increases in site fees by a fixed method - the Tribunal has no such power – proceedings dismissed Legislation Cited: Civil and Administrative Tribunal Rules 2014 (NSW) Residential (Land Lease) Communities Act 2013 (NSW) Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Leanne Nossiter (Applicant) Hometown Australia Parklea Operations Pty Ltd (Respondent) Representation: B Bavin (Applicant) J Sirec (Respondent) File Number(s): RC 21/31373 Publication restriction: Nil

REASONS FOR DECISION

Overview 1. In these proceedings the applicant, Leanne Nossiter, seeks against the respondent, Hometown Australia Parklea Operations Pty Ltd, relief under the Residential (Land Lease) Communities Act 2013 (NSW) (RLLC Act) arising out of her ownership of a site in a community which is operated by the respondent. 2. I have decided that the proceedings should be dismissed.

The background 1. The applicant is the home owner of site 26 within a residential land lease community within the meaning of the RLLC Act at Stanhope Gardens known as "Myrtle Glen Stanhope Gardens" (the community). 2. The respondent is the operator of the community which consists of 360 sites. 3. On 19 August 2020, the respondent provided the applicant with a disclosure statement for site 26 (the disclosure statement), which relevantly disclosed: 1. a range of site fees in the community of $145.95 to $217.00 per week; 2. proposed the applicant's site fees would be $217.00 per week; 3. the applicant's site fees would increase by the "fixed method" by 3.75% for 5 years beginning on the date of the first increase, after which the "notice (non-fixed) method" would apply. 1. On 3 September 2020, the applicant and the respondent entered into a residential site agreement (the site agreement) whereby the respondent granted the applicant the right to occupy site 26, and the applicant relevantly agreed to pay: 1. site fees of $217.00 on time and fortnightly in advance; 2. any increase in site fees by the "fixed method" by 3.75% for 5 years beginning on the date of the first increase, after which the "notice (non-fixed) method" would apply, with the first increase on 22 January 2021. 1. On 22 November 2020, the respondent provided the applicant with a notice of site fee increase which provided that her site fees would be $450.28 per fortnight commencing on 22 January 2021 (the 22 November 2020 notice). 2. The great majority of residential site agreements apply the notice (non-fixed) method for increases in site fees, with a small minority applying the fixed method.