Griffiths v Seachange Living NSW Pty Ltd t/a Milton Valley Holiday Park [2020] NSWCATAP 23

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Griffiths v Seachange Living NSW Pty Ltd t/a Milton Valley Holiday Park [2020] NSWCATAP 23 Hearing dates: 28 January 2020 Date of orders: 19 February 2020 Decision date: 19 February 2020 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President J Lonsdale, Senior Member Decision: (1) Appeal dismissed (2) The orders made below are affirmed. Catchwords: Residential Communities, site fee increase, whether increase was fair and equitable. Legislation Cited: Civil and Administrative Tribunal Act2013 NSW Residential ( Land Lease ) Communities Act 2013 NSW Cases Cited: Collins v Urban [2014]NSWCATAP17 Sunrise Property Holdings Pty Ltd [2019]NSWCATAP253 Texts Cited: None cited Category: Principal judgment Parties: Robert Griffiths (Applicant)

Seachange Living NSW Pty Ltd (Respondent) Representation: Applicant (Self Represented) Respondent (Self Represented) File Number(s): AP 19/49256 Publication restriction: Unrestricted Decision under appeal Court or tribunal: Civil & Administrative Tribunal Jurisdiction: Consumer & Commercial Division Citation: None cited Date of Decision: 21 October 2019 Before: G Blake SC, Senior Member File Number(s): RC 19/24763

REASONS FOR DECISION

Background 1. This is an appeal brought by a resident of a residential community regulated by the provisions of the Residential (Land Lease) Communities Act, 2013 (NSW) ("the Land Lease Act"). The appeal is from a decision of the Tribunal in the Consumer and Commercial Division declaring that a site fee increase was excessive and that the appropriate increase should be $11.16 per week. We shall refer to the Appellant as the "resident" and to the Respondent to the appeal as the "operator". 2. In the Notice of Appeal the resident states that the site fee increase should be limited to $4.90 per week (as opposed to the sum of $11.16 approved by the Tribunal). 3. The application at first instance was brought by the resident as representative of a number of home owners who occupy a residential site on a permanent basis in the residential community. It was common ground between the parties that the residential community contains 19 sites occupied by permanent residents and 104 sites by persons who occupy those sites on a basis which limits their occupation to 180 days each year. The parties refer to these occupants as the "annuals". It was agreed that the number of sites licensed to be occupied by "annuals" was 120. In addition, there are 21 sites licensed to be used by campers. In other words, the capacity of the residential community permits 19 permanent residents, 120 annuals and 21 campers. The number of actual occupants is 19 permanent residents, 104 annuals and the number of campers varies significantly from week to week. 4. The Decision and this appeal only concerns the permanent residents whose relationship with the operator is regulated by the Land Lease Act (except those who may have opted out under the provisions of that Act) and does not affect the annuals or campers whose relationship is not so regulated. 5. By a Notice of Site Fee Increase the operator proposed that the permanent residents' site fees would increase from 12 May 2019 as a consequence of increases in expenses totalling approximately $114,000. The decision under appeal ("the Decision") did not accept the operator's evidence that the expenses of the operator had increased to the extent claimed but did accept that expenses had increased by the sum of approximately $41,000. The operator has not appealed that finding. 6. In this appeal the resident submits that the apportionment of the increase of $41,000 between the permanent residents and the annuals has not been undertaken on a basis that could be described as fair or equitable. In particular, the resident argues that the Decision was in error in dividing the increase of $41,000 between the 123 occupied sites (19 permanent residents and 104 annuals) and should have been divided amongst the available 160 sites. The 160 sites are the total of the 19 permanent residents, the 120 sites licenced for use by annuals and the 21 sites for campers. That approach would have resulted in a much lower increase in the site fees payable by the permanent residents as opposed to the increase approved by the Tribunal of $11.16 per week.