Campbell v ZW2 Pty Ltd t/as Lake Munmorah Residential Resort [2014] NSWCATCD 36

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Campbell v ZW2 Pty Ltd t/as Lake Munmorah Residential Resort [2014] NSWCATCD 36 Hearing dates: 28 February 2014 Decision date: 20 March 2014 Jurisdiction: Consumer and Commercial Division Before: J McMillan, General Member Decision: 1. In consideration of the evidence before it the Tribunal finds that the rent increase is allowed but introduced in two stages as per the attached schedules. Legislation Cited: Residential Parks Act 1998 Cases Cited: Kilaptrick v Gresser (unreported, 13 May 1987, Foster J) Category: Principal judgment Parties: Colin and Gail Campbell and Ors (Applicants) ZW2 Pty Ltd t/as Lake Munmorah Residential Resort (Respondent) Representation: Mr Peter Reberger (for the applicants) Mr Lionel Lees (for the respondent) File Number(s): RP 13/59443

reasons for decision 1The respondent park owner gave the applicant residents a notice of increase. No challenge was made to the form or service of the notice. Neither was there any other challenge to the jurisdiction of the Tribunal to hear and determine the matter. 2The matter came before the Tribunal on 18 December 2013 and procedural directions were made on that day for the exchange of documents between the parties. The matter was then adjourned for hearing. On the day of the hearing the Tribunal made available to the parties a conciliator for the purpose of meeting with them and leading them to a resolution of the dispute. This process did not produce a settlement and the matter was then heard with the Tribunal reserving its decision. 3When determining an application for an order that a rent increase is excessive the Tribunal does under the provision of section 57 of the Residential Parks Act 1998. Section 57 provides; 57 Matters to be considered in determining rent applications The Tribunal may, in determining whether or not a rent increase or rent payable under a residential tenancy agreement or a proposed residential tenancy agreement for residential premises is excessive, have regard to each of the following factors: (a) the general market level of rents for comparable premises in the same residential park and in other residential parks in the locality or a similar locality, (b) the value of the residential premises, (c) the frequency and amount of past rent increases under the residential tenancy agreement or previous residential tenancy agreements between the same park owner and resident, (d) a general price index (such as the Consumer Price Index), (e) the conduct of the parties, (f) the amount of any outgoings in respect of the residential premises required to be borne by the park owner under the residential tenancy agreement or proposed agreement, (g) the estimated cost of any services provided by the park owner or the resident under the residential tenancy agreement or proposed agreement, (h) the value and nature of any fittings, appliances or other goods, services or facilities provided with the residential premises, (i) the accommodation and amenities provided in the residential premises and the state of repair and general condition of the premises, (j) any work done to the premises by or on behalf of the resident, to which the park owner has consented, (k) any other relevant matter. 4I shall deal with each of these matters separately. 5(a) the general market level of rents for comparable premises in the same residential park and in other residential parks in the locality or a similar locality The park was described by the applicants as having here types of blocks. These are external, corner and inside. They argued that there is a difference between these. There are five different rent structures within the park. These structures commenced in 2005 and came about due the park being developed. Residents commenced occupation of their sites during this period. The development of the residential sites within the park is now complete. 6The residents provide some information on four other parks in the locality. The park owner provided information on seven parks. The table below shows the comparisons. LAKE MUNORAH RESORT VALHALLA KINCUMBER NAUTICAL VILLAGE PINE NEEDLES TERAGLIN PARK TREES BEVINGTON SHORES MEANDER VILLAGE SITE FEES PER WEEK $149.68 - $166.05 $125 - $140 $144 - $246.15 $152.50 $150 - $160 $135 - $150 $150 - $160 $140 - $150 LOT SIZES (SQ M) 192 - 262.5 202 - 345 190 164 - 178 180 - 220 AGE OF PARK (YRS) 3 TO 8 2 TO 20 20 2 TO 25 6 TO 20 0 TO 35 FRONT GARDENS MAINTAINED Y N N N N N N N DISTANCE TO SHOPS 600 m 4.5 kms 3.2 kms 600 m 5.1 kms 4.3 kms 2.5 kms 1.8 kms OUTDOOR POOL Y N Y Y Y Y N Y INDOOR POOL Y Y N N N N N N TENNIS COURT Y Y Y Y Y Y N N GAMES ROOM Y Y Y Y Y N Y Y CRAFT ROOM Y Y N Y N N N N COMPUTER ROOM Y N Y N N N N N BILLIARDS/SNOOKER Y N Y Y N N N Y POOL TABLE Y Y Y N Y Y N N LIBRARY Y Y Y Y Y Y Y Y COMMUNITY BUS TO SHOPS FREE NOT FREE Y N NOT FREE Y Y Y BAR Y N Y N N N N N MOVIE THEARTRE Y N N Y N N N N INTERCOM TO EACH HOME Y Y N Y N N N N WORKSHOP Y Y Y N N N N N DINNING HALL Y Y Y Y Y N Y N LAWN BOWLS Y Y N Y N N N N CARPET BOWLS Y Y Y N Y N Y N SECURITY GATES Y Y N Y N Y N N BBQ AREA 3 5 2 N 1 N 1 N ACCESS TO LAKE DIRECT N DIRECT N DIRECT N DIRECT N COMMUNITY GARDEN & CARE Y Y Y Y N Y N N CARAVAN PARKING AREA 15 FREE Y FREE N Y N N N N GYMNASIUM Y N N N N N N N GOLF FACILITY Y N N Y N Y N N PUTTING GREEN Y Y Y Y N N N N PUBLLIC TRANSPORT Y Y Y Y Y Y Y Y DARTS & TABLE TENNIS Y Y Y Y Y Y Y N FENCED YARDS Y PART N PART N N N N INDIVIDULA WHEELIE BINS 2 N N Y N N N N