Bennett v Gennacker Pty Ltd - [2016] NSWCA 89

Court of Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Bennett v Gennacker Pty Ltd [2016] NSWCA 89
Hearing dates: 18 April 2016
Decision date: 29 April 2016
Before: Beazley P at [1];
Basten JA at [2];
Ward JA at [49]
Decision:
(1)   Allow the appeal and set aside the judgment and orders of Hidden J of 11 June 2015.

(2)   In place thereof:

(a)   set aside order (4) made by the Consumer, Trader and Tenancy Tribunal on 4 December 2012 (declaring the agreement between the parties “void”);

(b)   otherwise dismiss the summons in the Common Law Division.
(3)   Order that the respondent pay the appellant’s costs in this Court.
Catchwords: CONTRACT – occupation agreement – right to occupy site in holiday park – moveable dwelling on site – whether Holiday Parks (Long-Term Casual Occupation) Act 2002 (NSW) applies to agreement – whether occupant has a principal place of residence somewhere other than the site under s 5(1)(a) – whether requirement (a) applies at date agreement entered into – whether requirement that occupant has been an occupant on a casual basis for at least 12 months under s 5(1)(d)(ii) applies to agreement entered into after commencement of Act – whether requirement satisfied
Legislation Cited: Consumer Trader and Tenancy Tribunal Act 2001 (NSW), s 65
Holiday Parks (Long-Term Casual Occupation) Act 2002 (NSW), ss 3, 5, 6, 11, 18, 19, 26, 27, 28, 30; Pt 2; Sch 1
Interpretation Act 1987 (NSW), s 35
Residential Parks Act 1998 (NSW)
Statute Law (Miscellaneous Provisions) Act 2006 (NSW), Sch 1, item 1.15
Supreme Court Act 1970 (NSW), s 69
Category: Principal judgment
Parties: Donald Bennett (First Appellant)
Laureen Bennett (Second Appellant)
Gennacker Pty Ltd (Respondent)
Representation:
Counsel:
Ms M Painter SC/Mr T M Glover (Appellants)
Mr R A Dick SC/Mr N M Eastman (Respondent)
Solicitors:
Tenants Union of NSW Co-op Ltd (Appellants)
KL Legal (Respondent)

File Number(s): 2015/201229
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law Division

Citation:

[2015] NSWSC 726

Date of Decision:

11 June 2015

Before:

Hidden J

File Number(s):

2013/98967

HEADNOTE

[This headnote is not to be read as part of the judgment]

Since March 2008 the appellants have lived in a moveable dwelling located at a site forming part of a holiday park owned by the respondent at Chinderah on the north coast of New South Wales. In June 2012 the owner sought to terminate the agreement by giving the appellants three months’ notice within which to deliver up vacant possession of the site. The appellants did not vacate the site and the owner commenced proceedings in the Consumer, Trader and Tenancy Tribunal seeking an order terminating the occupation agreement and a further order for possession of the site. The jurisdiction of the Tribunal to grant such relief was conferred by s 27 of the Holiday Parks (Long-Term Casual Occupation) Act 2002 (NSW).

The Tribunal declined to make such an order on the basis that the Act did not apply to…

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.

Continue reading Bennett v Gennacker Pty Ltd

Details

AGLC: Bennett v Gennacker Pty Ltd [2016] NSWCA 89
Case: [2016] NSWCA 89
Decision Date: 29 April 2016

CaseChat Overview and Summary

The appeal in *Bennett v Gennacker Pty Ltd* concerned an occupation agreement for a site within a holiday park. The appellant, Ms Bennett, occupied a site with a moveable dwelling, and the dispute centred on whether the *Holiday Parks (Long-Term Casual Occupation) Act 2002* (NSW) applied to her agreement with the respondent, Gennacker Pty Ltd. The primary judge had found that the Act did not apply, leading to this appeal.

The Court of Appeal was required to determine whether Ms Bennett had a principal place of residence elsewhere, as stipulated by section 5(1)(a) of the Act, and whether this requirement was to be assessed at the time the agreement was entered into. Furthermore, the Court had to consider whether the requirement that an occupant has been a casual occupant for at least 12 months, under section 5(1)(d)(ii) of the Act, applied to agreements entered into after the commencement of the Act, and if so, whether Ms Bennett satisfied this condition.

The Court of Appeal allowed the appeal, finding that the primary judge had erred in his interpretation of the Act. The Court held that the question of whether a person has a principal place of residence elsewhere under section 5(1)(a) is a question of fact to be determined at the time the agreement is entered into. Crucially, the Court determined that the 12-month casual occupation requirement in section 5(1)(d)(ii) was a condition precedent to the Act applying to an agreement, and that this condition was not satisfied by Ms Bennett. Consequently, the Act did not apply to her occupation agreement.

The Court of Appeal set aside the judgment of the primary judge and the order of the Consumer, Trader and Tenancy Tribunal which had declared the agreement void. The summons in the Common Law Division was otherwise dismissed, and the respondent was ordered to pay the appellant's costs in the Court of Appeal.

Orders

Orders of the court

(1) Allow the appeal and set aside the judgment and orders of Hidden J of 11 June 2015.

(2) In place thereof:

(a) set aside order (4) made by the Consumer, Trader and Tenancy Tribunal on 4 December 2012 (declaring the agreement between the parties “void”);

(b) otherwise dismiss the summons in the Common Law Division.

(3) Order that the respondent pay the appellant’s costs in this Court.

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:	Bennett v Gennacker Pty Ltd [2016] NSWCA 89
Hearing dates:	18 April 2016
Decision date:	29 April 2016
Before:	Beazley P at [1]; Basten JA at [2]; Ward JA at [49]
Decision:	(1) Allow the appeal and set aside the judgment and orders of Hidden J of 11 June 2015. (2) In place thereof: (a) set aside order (4) made by the Consumer, Trader and Tenancy Tribunal on 4 December 2012 (declaring the agreement between the parties “void”); (b) otherwise dismiss the summons in the Common Law Division. (3) Order that the respondent pay the appellant’s costs in this Court.
Catchwords:	CONTRACT – occupation agreement – right to occupy site in holiday park – moveable dwelling on site – whether Holiday Parks (Long-Term Casual Occupation) Act 2002 (NSW) applies to agreement – whether occupant has a principal place of residence somewhere other than the site under s 5(1)(a) – whether requirement (a) applies at date agreement entered into – whether requirement that occupant has been an occupant on a casual basis for at least 12 months under s 5(1)(d)(ii) applies to agreement entered into after commencement of Act – whether requirement satisfied
Legislation Cited:	Consumer Trader and Tenancy Tribunal Act 2001 (NSW), s 65 Holiday Parks (Long-Term Casual Occupation) Act 2002 (NSW), ss 3, 5, 6, 11, 18, 19, 26, 27, 28, 30; Pt 2; Sch 1 Interpretation Act 1987 (NSW), s 35 Residential Parks Act 1998 (NSW) Statute Law (Miscellaneous Provisions) Act 2006 (NSW), Sch 1, item 1.15 Supreme Court Act 1970 (NSW), s 69
Category:	Principal judgment
Parties:	Donald Bennett (First Appellant) Laureen Bennett (Second Appellant) Gennacker Pty Ltd (Respondent)
Representation:	Counsel: Ms M Painter SC/Mr T M Glover (Appellants) Mr R A Dick SC/Mr N M Eastman (Respondent) Solicitors: Tenants Union of NSW Co-op Ltd (Appellants) KL Legal (Respondent)
File Number(s):	2015/201229
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Common Law Division Citation: [2015] NSWSC 726 Date of Decision: 11 June 2015 Before: Hidden J File Number(s): 2013/98967