Hometown Australia Lennox Australia Pty Ltd v Schoenheimer [2023] NSWCATAP 128

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hometown Australia Lennox Australia Pty Ltd v Schoenheimer [2023] NSWCATAP 128 Hearing dates: 3 May 2023 Date of orders: 11 May 2023 Decision date: 11 May 2023 Jurisdiction: Appeal Panel Before: D Charles, Senior Member D Ziegler, Senior Member Decision: 1. Appeal allowed. 2. Orders 1, 2, and 3 made by the Tribunal on 11 November 2023 are set aside. 3. In substitution of the Tribunal decision, order that the application of Ms Schoenheimer in the proceeding constituted by File No RC 22/08431, be dismissed. 4. No order as to costs, with the intent that each party is to bear their own costs of the appeal. Catchwords: RESIDENTIAL COMMUNITIES – site fees of similar size and location - fair market value of site fees in a new site agreement – statutory interpretation – s 109(6)(b) does not require or permit an averaging of site fees Legislation Cited: Civil and Administrative Tribunal Act 2013 NSW Residential (Land Lease) Communities Act 2013 NSW Civil and Administrative Tribunal Rules 2014 NSW Cases Cited: Hometown Australia Lennox Pty Ltd v Bullivant [2022] NSWCATAP 161 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (28 April 1998) Tork v Parklea Operations Pty Ltd trading as Gateway Lifestyle Residential Park [2019] NSWCATAP 299 Murphy v Bevington Shores (Residential Parks) [2008] NSWCTTT 1458 Carr v The State of Western Australia [2007] HCA 138; (2007) 232 CLR 138 (23 October 2007) Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing, and Allied Services Union of Australia v Qantas Airways Limited (2020) 282 FCR 130 R v Young (1999) 46 NSWLR 681 Texts Cited: None Cited Category: Principal judgment Parties: Hometown Australia Lennox Pty Ltd (Appellant) Eve Schoenheimer (Respondent) Representation: Counsel: