Anderson v Kincumber Nautical Village Pty Ltd

The applicant, Anderson, sought to have certain terms in the residential site agreement declared void for being unfair contract terms under the Australian Consumer Law, as incorporated into the Residential (Land Lease) Communities Act 2013 (NSW). The agreement was for a land lease in Kincumber Nautical Village, and the respondent, Kincumber Nautical Village Pty Ltd, was the landowner. The primary issue was whether a term in the agreement that allowed for an increase in site fees based on multiple factors, including the Consumer Price Index, was unfair and, if so, what the appropriate remedy would be.

The court examined whether the term caused a significant imbalance in the parties’ rights and obligations and whether it was reasonably necessary to protect the respondent’s legitimate interests. The court noted that the term did cause a significant imbalance as it allowed for substantial increases in fees without a direct correlation to the applicant’s obligations. Furthermore, the term was not reasonably necessary to protect the respondent’s interests, as the respondent could have negotiated more balanced terms. The court also considered whether the term was excluded from the unfair contract regime because it set the "upfront price". The court concluded that the term did not fall under this exclusion.

Following the finding that the term was unfair, the court considered the appropriate remedy. The court ordered the respondent to refund any overpaid site fees to the applicant and directed that if the parties could not agree on the amount to be refunded, they were to file evidence and submissions to support their position. The court then determined that it would decide the amount of overpaid fees and the form of the order based on the evidence and submissions without a further hearing.

The orders of the court required the respondent to refund overpaid site fees to the applicant and outlined the process for determining the amount of the refund if the parties could not agree. The court aimed to provide a fair and efficient resolution to the dispute while ensuring the applicant received any overpaid fees.