Penshurst Street Holdings Pty Ltd v Robert Barker and Joan Barker and others [2014] NSWCATCD 209

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Penshurst Street Holdings Pty Ltd v Robert Barker and Joan Barker and others [2014] NSWCATCD 209 Hearing dates: 9 July 2014 and 29-30 September 2014 Decision date: 25 November 2014 Jurisdiction: Consumer and Commercial Division Before: J Smith, Senior Member Decision: Each application is dismissed. The Tribunal notes the undertaking that the parties would not seek costs. Catchwords: Change of land use, termination of village contracts, "appropriate" that land use be changed, "obtained (or made available) alternative accommodation" whether at greater financial outlay. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NCAT Act), Retirement Villages Act 1999 (RV Act) Category: Principal judgment Parties: Applicant: Penshurst Street Holdings Pty Ltd (in all six applications)

Respondents: Mr Robert Barker and Mrs Joan Barker (application RV 14/ 16133), Ms Jennifer Gee (application RV 14/ 16149) Ms Helgi Wilson (application RV 14/ 16141) Mr Douglas Little (application RV 14/ 16164) Ms Linda Yeo (application RV 14/ 16167) Ms Mary Kelly (application RV 14/ 16138) Representation: Counsel: Mr Allan for the respondents Solicitors: Mr Koumoukelis for the applicant File Number(s): RV 14/ 16133, RV 14/ 16149, RV 14/ 16141, RV 14/ 16164, RV 14/ 16167, RV 14/ 16138 Publication restriction: Nil

REASONS FOR DECISION

APPLICATION 1. These six applications were filed in the Tribunal on 19 March 2014. At that time application RV 14/ 16134 raising the same issues was also filed but has since been withdrawn. The applications were listed for a directions hearing before me on 8 April 2014 at which time leave for the parties to be legally represented was granted and directions were made for exchange of documents. 2. The applications were listed before me for a one day hearing on 9 July 2014. At that hearing the applicant's case was commenced but it became apparent that insufficient time had been allocated to complete the matter on that day. In addition, in order to fully understand the applicant's submissions in regard to its claimed attempts at provision of alternate accommodation for the respondents and the respondent's submissions in reply, the parties were directed to exchange further material in the form of a schedule setting out the submission and the evidence to be relied on by the applicant and a response from each of the respondents. 3. The matters were then listed for further hearing on 29, 30 September 2014. At the commencement of the hearing on 29 September 2014 and at the conclusion of the hearing on 30 September 2014 the parties' attention was drawn to the potentially serious consequences for the unsuccessful party(ies) of a decision of the Tribunal and they were invited to engage in settlement discussions. At the time of conclusion of the hearing the parties had been unable to resolve their dispute by agreement. They were however encouraged to have further discussions with a view to resolution by consent prior to publication of this decision. 4. All six applications sought orders pursuant to the Retirement Villages Act 1999 s 136 for the termination of the village contract of each respondent and for possession of their respective premises to be handed back to the applicant. The applications were based on a proposed change of land usage. 5. At the commencement of the hearings on 9 July 2014 it was determined that all matters were to be heard together and that the evidence in one would be treated as evidence in all. Neither of the parties' representatives took exception to that way of proceeding.