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[2016] NSWCATAP 216
NCAT Appeal Panel
2016-09-08
Wright J
Original judgment source is linked above.
WCA 143 Haig v The Minister Administering the National Parks and Wildlife Act 1974 (Court of Appeal (NSW), 4 November 1994 unrep) Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11 Khoury v Government Insurance Office of (NSW) [1984] HCA 55; 165 CLR 622 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 Mamo v Surace (2014) 86 NSWLR 275; [2014] NSWCA 583 Paino v Paino [2008] NSWCA 276; (2008) 40 Fam LR 96 Pointe Gourde Quarrying and Transport Co v Sub-Intendent of Crown Lands Trinidad [1947] AC 565 Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 SL v Secretary, Department of Family and Community Services [2016] NSWCA 124 Springfield Land Corporation (No 2) Pty Ltd v Queensland (2011) 242 CLR 632; [2011] HCA 15 Spencer v The Commonwealth (1907) 5 CLR 418 Sydney Harbour Foreshore Authority v Walker Corporation Pty Ltd (2005) 63 NSWLR 407; [2005] NSWCA 251 Sydney Water Corporation v Marrickville Council [2014] NSWCA 438 Thiess v Collector of Customs [2014] HCA 12; 250 CLR 664 TriCare (Hastings) Limited v Allen [2015] NSWCA 344 TriCare (Hastings) Limited v Tweed Shire Council (No 2) [2013] NSWLEC 207 TriCare (Hastings) Limited v Tweed Shire Council [2013] NSWLEC 183 Water Board v Moustakas (1988) 180 CLR 491 Category: Principal judgment Parties: Sue Allen (Appellant in AP16/22096) Beryl Anderson (Appellant in AP16/25422) Kevin Byng (First Appellant in AP16/24875) Lorraine Byng (Second Appellant in AP16/24875) Phillip Tucker (Appellant in AP16/25372) Judy Tucker (Appellant in AP16/25414) TriCare (Hastings) Limited (Respondent in all appeals) Representation: Counsel: Ms M McMahon (Appellants) Dr S Berveling (Respondent)
Solicitors: Tenants' Union New South Wales (Appellants) Minter Ellison (Respondent) File Number(s): AP 16/25372, AP 16/25414, AP 16/24875, AP 16/22096, AP 16/25422 Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Division Citation: [2016] NSWCATCD 25 Date of Decision: 06 April 2016 Before: S Westgarth, Deputy President File Number(s): RP 13/34743, RP 13/34744, RP 13/34745, RP 13/34746 and RP 13/34741
Introduction
Background
The Decision Below
The Appeal
Grounds of Appeal and Orders Sought on Appeal
Nature of the Appeal
The Owner's reply to appeal
Nature of Issues raised by the Grounds of Appeal
Relevant Principles of Statutory Construction
Relevant Provisions of the Residential Parks Act
Long Title and Objects
Part 3 - Relevant Agreements and Related Definitions
Part 4 - Rights Attaching to Residential Tenancy Agreements
Part 12 - Termination of residential tenancy agreements
Part 12 Division 1 - Termination generally
Part 12 Division 2 - Grounds for termination of a residential site agreement
Part 12 Division 3 - Grounds for termination of a residential tenancy agreement that is not a residential site agreement
Part 12 Division 4 - Notices of termination
Part 12 Division 5 - Termination of residential tenancy agreements by Tribunal
Part 12 Division 6 - Recovery of possession of residential premises
Part 12 Division 7 - Compensation for termination of a residential site agreement
Pt 12 Div 8 - Abandoned premises and goods
Relevant Legislative History of the Residential Parks Act and Extrinsic Material
Ground 1
Ground 2
Ground 3
Ground 4
Rights related to the site agreement and paragraph [35] factors
Location and premium
Summary and conclusion on ground 4
Grounds 6 and 7
The Appeal Panel's approach to these grounds of appeal
Expert Evidence Generally
His report was based on a number of documents not referred to or included in his report.
He does not set out his methodology for reaching his various valuations in the report.
His report fails to set out the assumptions underlying each basis of valuation.
His report fails to set out a number of limitations to his report.
His report was based on verbal information given to him by third parties. Neither the information given nor the identity of the third parties is contained within the report.
The comparable sales he uses as the starting point of his valuations were provided to him by a third person and the details of that exchange are not in his report.
He had limited information on the comparable sales and did not have information on the size of the dwellings, the condition of the dwellings and he did know whether they were dwellings with permanent site agreements.
He was unable to find a solitary comparable for dwellings sold off site.
He applied an arbitrary figure to determine the monetary value of the statutory rights contained within a site agreement. When asked how he arrived at that sum he conceded there was 'no basis' for doing so.
When asked to explain how he reached his conclusion that the dwellings were in fact worth less in the park than 'on stumps' off site he said he based it what he would prefer to purchase himself.
He was unable to support his conclusion as to a 'comparable park'.
He struggled with the orders.
The Valuer's Expertise
Pointe Gourde Principle
Conclusion on grounds 6 and 7
Ground 8
Grounds 9 and 10
Should the residents be permitted to raise the operation of cl 10 of Sch 2 to the Land Lease Communities Act?
Consideration of Grounds 9 and 10
Relevant Provisions of the Land Lease Communities Act
Transitional Provisions.
Relevant Compensation Provisions and Definitions.
Relevant Legal and Factual Circumstances
Application of the Transitional Provisions to the circumstances
The Parties' Submissions
The Interaction of Cl 6 and Cl 10 of the Transitional Provisions
The residents' seeking in the alternative to have the proceedings remitted for compensation to be determined under s 141 of the Land Lease Communities Act
Conclusions and Orders
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 September 2016
Allen
TriCare
[2014] NSWCA 583
[2014] HCA 12
(2010) 241 CLR 390
(2014) 86 NSWLR 275
(2008) 40 Fam LR 96
(2011) 242 CLR 632
(1907) 5 CLR 418
(2005) 63 NSWLR 407
(1988) 180 CLR 491
(1984) 165 CLR 622
(1990) 170 CLR 321
(1986) 162 CLR 24
(2002) 55 IPR 354
(1982) 150 CLR 310
(1997) 47 NSWLR 631
[1990] HCA 33
[2009] HCA 41