Bennett v Gennacker Pty Ltd

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.