Palm Lake Resort Appeal Dismissed

On 30 June 2021 the NSW Civil and Administrative Tribunal (NCAT) Appeal Panel handed down the decision in Palm Lake Resort P/L v King and Metcalfe NSWCATAP 195. The proceedings were an appeal by the operator against a finding by the Tribunal at first instance that the site fee increase term in the home owners’ site agreements contained more than one fixed method. This case is similar to the one at Kincumber Nautical Village (see article ‘David vs Goliath’) however the fixed method terms being disputed were different.

The site agreement term provided that sites fees would be increased by 3% or CPI, whichever is the greater. The Tribunal determined the term breached section 66 (2) of the Residential Land Lease Communities Act and that the method that results in the lower increase is to be applied.

The operator appealed on two grounds or error of law, only one of which was pressed at the hearing: Sections 65(2) and 66(2) were wrongly construed and applied because, on the proper construction of those provisions, the site agreements did not provide for a site fee increase “by more than one fixed method” and so complied with s 65(2)(a) and s 66(2) of the Act.

At the 16 February 2021 hearing Senior Counsel for the operator argued that the term of the site agreement did not offend the Act because site fees would only be increased by one of the methods, not both.

Home owners were represented by Paul Batley barrister of Frederick Jordan Chambers, instructed by Paul Smyth, Residential Parks Legal Officer at the Tenants’ Union. Wendy Sotera, the home owners advocate, also appeared at the appeal hearing.

It was submitted on behalf of the Respondent home owners that the Tribunal had not erred in law or fact, that the meaning of s 66(2) is clear and that there is no ambiguity or constructive choice in the provision.

Further submissions were made on the specifics of the term of the site agreements and why they offended the Act, and that the order at first instance is supported by section 12 of the Act, which prohibits contacting out.

In reaching a decision the Appeal Panel said “We agree with the reasoning of the primary member supported by the additional matters raised in the residents’ reply to and written submissions on appeal.” The appeal was dismissed.

This article was published in Outasite magazine issue 7. Outasite is published annually. Outasite Lite email newsletter, is sent several times a year – subscribe here. All past issues are available in the archive.