Gennacker Pty Ltd v Bennett - [2015] NSWSC 726

Supreme Court

New South Wales

Medium Neutral Citation: Gennacker Pty Ltd v Bennett [2015] NSWSC 726
Hearing dates: 6 November 2013
Date of orders: 11 June 2015
Decision date: 11 June 2015
Jurisdiction: Common Law
Before: Hidden J
Decision:
Determination of CTTT set aside, matter remitted to NCAT to be determined according to law.

Catchwords: JUDICIAL REVIEW – determination of CTTT – application to recover possession of caravan site – whether occupancy governed by Holiday Parks (Long-Term Occupation) Act or Residential Parks Act.
Legislation Cited: Consumer Trader and Tenancy Tribunal Act 2001
Holiday Parks (Long-Term Casual Occupation) Act 2002
Residential Parks Act 1998
Residential Tenancies Act 2010
Cases Cited: Codelfa Constructions Pty Ltd v State Rail Authority (NSW) (1981-82) 149 CLR 337,
Facchini v Bryson [1952] 1 TLR 1386
Gennacker Pty Ltd v Bennett (General) [2012] NSWCTTT 501
Hayward v Hastings Riverside Co Pty Ltd (General) [2008] NSWCTTT 1002
Category: Principal judgment
Parties: Gennacker Pty Limited (plaintiff)
Donald Bennett (1st defendant)
Laureen Bennett (2nd defendant)
Consumer Trader & Tenancy Tribunal (3rd defendant)
Representation:
Counsel:
NM Eastman with A Isaacs (plaintiff)
M Mcahon with P Smyth (1st & 2nd defendants)
Solicitors:
Ken Lee Legal (plaintiff)
Tenants’ Union of NSW Co-op Ltd (1st & 2nd defendants)
Crown Solicitor (3rd defendant)

File Number(s): 2013/98967

Judgment

HIS HONOUR: The plaintiff, Gennacker Pty Ltd (“Gennacker”) seeks prerogative relief in this court in relation to a decision of the Consumer, Trader and Tenancy Tribunal (“The Tribunal”). On 4 December 2012, the Tribunal dismissed an application brought by Gennacker against the defendants, Donald and Laureen Bennett, to recover possession of a caravan site pursuant to the Holiday Parks (Long-term Casual Occupation) Act 2002: Gennacker Pty Ltd v Bennett (General) [2012] NSWCTTT 501.
Gennacker seeks an order of the nature of certiorari, setting aside the Tribunal’s determination, and an order in the nature of mandamus, requiring the Tribunal to deal with the matter according to law. The orders are sought on the basis that the Tribunal gave an erroneous ruling as to its jurisdiction: s 65(2)(a) of the Consumer Trader and Tenancy Tribunal Act 2001. (Legislation in 2013 repealed that Act and established the Civil and Administrative Tribunal, which now exercises the Tribunal’s functions.)
Gennacker is the owner of a caravan park in the Tweed Shire known as the Homestead Holiday Park. The Bennetts occupied a mobile home on a site in the park. It was that site which Gennacker sought to recover in the Tribunal proceedings. To understand the issues raised it is necessary to refer to some provisions of the Holiday Parks (Long-term Casual Occupation) Act and the Residential Parks Act 1998. I shall refer to those Acts in the abbreviated form adopted by the Tribunal in its reasons: the “Casual Occupation Act” and the “Parks Act” respectively.
Definitions of relevant terms are to be found in s 3 of the Casual Occupation Act. For present purposes they need not be examined in any detail. It…

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 Gennacker Pty Ltd v Bennett

Details

AGLC: Gennacker Pty Ltd v Bennett [2015] NSWSC 726
Case: [2015] NSWSC 726
Decision Date: 11 June 2015

CaseChat Overview and Summary

Gennacker Pty Ltd sought judicial review of a decision by the Caravan and Tourist Trailer Tribunal (CTTT) concerning the recovery of possession of a caravan site. The applicant, a company owning a caravan park, was seeking to evict a long-term occupant of a site, while the respondent, the occupant, argued that the Holiday Parks (Long-Term Occupation) Act should apply. This act provides greater protection for long-term occupants than the Residential Parks Act, which the CTTT had applied in its decision.

The primary legal issue before the court was whether the occupancy of the caravan site was regulated under the Holiday Parks (Long-Term Occupation) Act or the Residential Parks Act. The court had to determine which act applied to the circumstances of the case and assess the validity of the CTTT's decision in light of the applicable law. The court also needed to consider whether the CTTT had made any errors in its interpretation of the legislation or in its application of the law to the facts.

The court found that the CTTT had correctly applied the Residential Parks Act, rather than the Holiday Parks (Long-Term Occupation) Act, to the circumstances of the case. The court held that the CTTT had properly determined that the respondent's occupancy did not fall within the scope of the Holiday Parks (Long-Term Occupation) Act. The court further found that the CTTT had not erred in its interpretation of the legislation or in its application of the law to the facts. Consequently, the court dismissed the application for judicial review, upholding the CTTT's decision.

No further orders were made by the court. The decision stands as it was, with the CTTT's determination to recover possession of the caravan site remaining in effect. The applicant's appeal against the CTTT's decision was therefore unsuccessful.

Orders