Kary v B’nai B’rith Retirement Villages Ltd [2023] NSWCATCD 16

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kary v B'nai B'rith Retirement Villages Ltd [2023] NSWCATCD 16 Hearing dates: 6 April 2023 Date of orders: 12 April 2023 Decision date: 12 April 2023 Jurisdiction: Consumer and Commercial Division Before: R C Titterton OAM, Senior Member Decision: Rule 5 of the Village rules of the Princess Gardens Retirement Village is modified in relation to the applicant so that it reads as follows: "No dogs or cats allowed. You may keep fish in your premises at any time, without the need to let us know or get our consent. For safety of other residents, no other animals (including birds, cats, or dogs) are to be kept in your premises or brought onto common areas at any time. However, you may keep a maximum of two budgerigars on your premises provided that: (a) the budgerigars remain within their cage at all times; (b) the cage remains within your apartment at all times; and (c) the cage is not paced on the balcony; (d) you must take all practical steps to comply with guidelines issued by NSW Health or other NSW Government agencies to minimise the risk of infectious diseases (including Psittacosis) posed by the keeping of the budgerigars". Catchwords: LAND LAW – Retirement Villages Act 1999 (NSW) Village rule providing that "No dogs or cats allowed. You may keep fish in your premises at any time, without the need to let us know or get our consent. For safety of other residents, no other animals (including birds, cats, or dogs) are to be kept in your premises or brought onto common areas at any time - whether rule" unjust, harsh, unconscionable or oppressive" for purposes of s 54(1)(b) of the Retirement Villages Act 1999 (NSW) – whether rule should be modified pursuant to s 54(2)(b) of the Retirement Villages Act 1999 (NSW) Legislation Cited: Retirement Villages Act 1999 (NSW) – ss 43, 54, 66 Strata Schemes Management Act 2015 (NSW) – s 150 Cases Cited: Byrne v Australian Airlines Ltd [1995] HCA 24 Cooper v The Owners – Strata Plan No 58060 [2020] NSWCA 250 Kary v B'nai B'rith Retirement Villages Limited [2023] NSWCATAP 5 Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110 Murphy v Trustees of Catholic Aged Care Sydney [2018] NSWCATAP 275 The Owners – SP No 91684 v Liu; The Owners – SP No 90189 v Liu [2022] NSWCATAP 1 Texts Cited: D C Pearce, Statutory Interpretation in Australia, Ninth Edition, Lexis Nexis Category: Principal judgment Parties: Applicant: David Mark Kary