Gant v Emmetlow Pty Ltd

Thomas Gant and Patrick Mitchell, residents of Colonial Village, a mixed-use park and manufactured home village operated by Emmetlow Pty Ltd, brought proceedings against the park owner to challenge specific terms of their site agreements. The applicants sought orders to delete certain capital contribution terms and to have the money paid refunded. They argued that these terms were unfair and breached provisions of the Manufactured Homes (Residential Parks) Act 2003 (Act). The applicants contended that the capital contributions were unfair because they were not present in the majority of site agreements and did not provide any additional benefits to those who had them. They also argued that these contributions circumvented the legal procedures required to increase site rent.

The court was required to determine whether the capital contribution terms were inconsistent with the Act or an attempt to contract out of the Act. It also needed to consider whether it was appropriate to vary the special terms of the site agreements under the Act. The court examined the nature of the capital contributions, which were analogous to a sinking fund levy in a body corporate, and noted that the park owner intended all new site agreements to include such terms. Additionally, the court had to assess if there was sufficient evidence to justify varying the terms based on fairness or changes in circumstances.

The court concluded that the capital contribution terms were not inconsistent with the Act and therefore not void. It found that the terms were enforceable and did not contravene the Act, aligning with a previous finding by Magistrate Rinaudo. The court also determined that there was no basis to vary the terms, as no evidence of unfairness or changes in circumstances was presented. The applicants had voluntarily agreed to the terms and had the opportunity to seek independent advice. The court emphasized that the Act permits additional charges to be agreed upon by the parties and that the mere existence of more favorable terms in earlier agreements did not warrant variation. The court dismissed the application, finding that it was not appropriate to vary the site agreements by deleting the capital contribution terms.