Kary v B’nai B’rith Retirement Villages Limited [2023] NSWCATAP 5

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kary v B'nai B'rith Retirement Villages Limited [2023] NSWCATAP 5 Hearing dates: 14 December 2022 Date of orders: 09 January 2023 Decision date: 09 January 2023 Jurisdiction: Appeal Panel Before: D Charles, Senior Member D Ziegler, Senior Member Decision: 1. Application for extension of time to lodge the appeal to 30 August 2022, is granted. 2. Appeal allowed. 3. Order 1 made on 3 August 2022 in the proceedings constituted by file no RV 22/06325 is set aside, and the proceedings are remitted to the Consumer and Commercial Division for reconsideration in accordance with these Reasons and otherwise according to law, by a differently constituted Tribunal, with leave to both parties to adduce further evidence. 4. No order as to the costs of this appeal (with the intent that each party is to bear their own costs of the appeal). Catchwords: RETIREMENT VILLAGES – extension of time for lodgement of appeal - nature and scope of Tribunal's powers in respect of orders affecting Village Rules – whether a Village Rule is unjust unconscionable harsh or oppressive within s 54 - findings of fact required at a remitted hearing – appeal allowed Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Retirement Villages Act 1999 (NSW) Retirement Villages Regulation 2017 (NSW) Real Property Act 1900 (NSW) Cases Cited: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Cooper v The Owners – Strata Plan 4633 [2020] NSWCA 250 Jackson v NSW Land & Housing Corporation [2014] NSWCATAP 22 Texts Cited: None Cited Category: Principal judgment Parties: David Mark Kary (Appellant) B'nai B'rith Retirement Villages Limited (Respondent) Representation: Appellant – Self Represented Respondent – P Chapman, solicitor File Number(s): 2022/00257557 Publication restriction: Unrestricted Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 03 August 2022 Before: J Ringrose, General Member File Number(s): RV 22/06325