Allen & Ors v TriCare (Hastings) Pty Ltd & Anor [2015] NSWSC 416

Supreme Court New South Wales

Medium Neutral Citation: Allen & Ors v TriCare (Hastings) Pty Ltd & Anor [2015] NSWSC 416 Hearing dates: 1 April 2015 Date of orders: 17 April 2015 Decision date: 17 April 2015 Jurisdiction: Common Law Before: Beech-Jones J Decision: (1) The time for the commencement of these proceedings be extended pursuant to Uniform Civil Procedure Rule 59.10(2) up to and including 3 December 2014.

(2) Within seven days, the plaintiffs file an Amended Summons naming the correct parties as plaintiffs.

(3) The orders made by the NSW Civil and Administrative Tribunal dated 2 September 2014 in so far as they concern each of Sue Allen, Beryl Anderson, Kevin Byng, Lorraine Byng, Phillip Tucker and Judy Tucker be set aside.

(4) The NSW Civil and Administrative Tribunal re-hear according to law the applications of TriCare (Hastings) Pty Ltd seeking orders under s 113 of the Residential Parks Act 1998 against Sue Allen, Phillip Tucker, Judy Tucker, Kevin Byng, Lorraine Byng and Beryl Anderson.

(5) There be no order as to costs. Catchwords: JUDICIAL REVIEW – decision of NSW Civil and Administrative Tribunal – Residential Parks Act 1985 –application to terminate residential site agreements – necessity for Tribunal to be satisfied that compensation for cost of relocating dwelling to new location has been determined under s 128 – relocation not possible – Tribunal erred in concluding that order for termination could be made where no relocation was to occur – whether Tribunal approach to s 113(3A)(b) correct – s 113(3A)(b) does not require agreement with resident – Tribunal can assess value of dwelling under s 130A in application under s 113A – discretion to refuse relief where internal appeal available – whether explanation for not pursuing appeal adequate – discretion not exercised – relief granted. Legislation Cited: - Civil and Administrative Tribunal Act 2013 – s 34, s 41, s 60, s 80, s 81, s 83 - Civil and Administrative Tribunal Regulation 2013 – Reg 6(4) - Civil and Administrative Tribunal Rules 2014 – Rule 25 - Environmental Planning & Assessment Act 1979 - Interpretation Act 1987 – s 33 - Residential Parks Act 1998 – s 4, s 5, s 95A, s 98, s 99, s 100, s 101, s 102, s104, s 113, s 118, s 127, s 128, s 130A - Residential Parks Amendment (Statutory Review) Act 2005 (No 117 of 2005) - Supreme Court Act 1970 (NSW) – s 69 - Uniform Civil Procedure Rules – 59.10 Cases Cited: - Buck v Bavone (1976) 135 CLR 110 - Craig v State of South Australia [1995] HCA 58; 184 CLR 163 - Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; 239 CLR 531 - Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 - R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407 Category: Principal judgment Parties: Sue Allen – First Plaintiff Beryl Anderson – Second Plaintiff Kevin Byng – Third Plaintiff Lorraine Byng – Fourth Plaintiff Phillip Tucker – Fifth Plaintiff Judy Tucker – Sixth Plaintiff TriCare (Hastings) Pty Ltd – First Defendant NSW Civil and Administrative Tribunal – Second Defendant Representation: Counsel: Ms M. McMahon – Plaintiffs Dr S. Berveling – First Defendant