Coolah Home Base Pty Ltd v Tait [2022] NSWCATAP 324

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Coolah Home Base Pty Ltd v Tait [2022] NSWCATAP 324 Hearing dates: 31 March 2022 and 17 May 2022 Date of orders: 17 October 2022 Decision date: 17 October 2022 Jurisdiction: Appeal Panel Before: A Suthers, Principal Member G Burton SC, Senior Member Decision: (1) The appeal is allowed for the purpose of varying orders 1 and 2 made 5 July 2021 to read as follows: "1. Order that the Retirement Villages Act 1989 (NSW) applies to those parts of Coolah Caravan Park that are subject to the rights of the applicants attached to the shares in Coolah Home Base Pty Ltd. 2. Pursuant to s 128(1)(c)(ii) of the Retirement Villages Act 1989 (NSW), order Coolah Tourist Park Pty Ltd to perform the obligations under the Retirement Villages Act 1989 (NSW) of the operator for the time being in respect of the contracts between each of the applicants and Coolah Home Base Pty Ltd including the rights attached to the shares under the constitution of Coolah Home Base Pty Ltd in respect of the applicants' sites and the communal facilities on the land being Lots 130 and 131 in DP 728787." (2) Otherwise dismiss the appeal. (3) Order as follows in respect of costs of the appeal and the primary hearing: (a) Any application in respect of costs is to be filed and served within 14 days, accompanied by any further evidence and submissions in respect of costs. (b) Any further evidence and submissions in response to the documents filed and served under order 3(a) are to be filed and served within a further 14 days. (c) Submissions on the application for costs by each party are not to exceed five pages in length. (d) The Appeal Panel may dispense with a hearing and determine any application for costs on the basis of the written submissions and evidence provided. If the parties oppose this course they should make submissions on this issue when complying with the directions as to their submissions on the substantive costs application. If a hearing is not dispensed with, the parties will be advised of a date for the hearing of the application. Catchwords: REAL PROPERTY - RETIREMENT VILLAGES – RESIDENTIAL (LAND LEASE) COMMUNITIES - definition and interpretation – Retirement Villages Act 1989 (NSW) ss 3, 4, 5, 7, 24A, 40, 128, 129, 130, 136, 136A, 138, 139 Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Local Government Act 1993 (NSW) Residential (Land Lease) Communities Act 2013 (NSW) Residential (Land Lease) Communities Regulation 2015 (NSW) Residential Parks Act 1998 (NSW) Residential Parks Regulation 2006 (NSW) Residential Tenancies Act 2010 (NSW) Retirement Villages Act 1999 (NSW) Retirement Villages Regulation 2009 (NSW) (repealed) Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Bondi Beach Astra Retirement Village Pty Ltd v Assem [2020] NSWSC 1814 Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600 Butterworth v Trustees of the Society of St Vincent de Paul [2012] NSWDC 211 Collins v Urban [2014] NSWCATAP 17 Commissioner of Stamp Duties (NSW) v JV (Crows Nest) Pty Ltd (1986) 7 NSWLR 529 (CA) Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, [2012] HCA 55 McMilllan v Coolah Tourist Park Pty Ltd [2021] NSWCATAP 73 McMillan v Coolah Home Base Pty Ltd [No 4] [2022] NSWSC 584 Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme (2003) 216 CLR 212 NSW Land and Housing Corp v Orr (2019) 100 NSWLR 578, [2019] NSWCA 231 Owners SP 63341 v Malachite Holdings Pty Ltd [2018] NSWCATAP 256 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (CA) SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 Vincent v IOOF Friendly Society NSW Ltd [2013] NSWCTTT 482 Wainohu v NSW (2011) 243 CLR 181 Texts Cited: Halsbury's Laws of Australia (online ed) Macquarie Dictionary (current and former eds) Oxford English Dictionary (2nd ed) Category: Principal judgment Parties: Coolah Home Base Pty Ltd and 3 others (Appellants) Lee Marilyn Tait and 14 others (Respondents) Representation: Counsel: Mr T Bateman (Appellants) Mr P Vogel, solicitor (Respondents)