Howard v Sea Spirit Lifestyle Management Pty Ltd

[2025] NSWCATCD 51

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Howard v Sea Spirit Lifestyle Management Pty Ltd [2025] NSWCATCD 51

Hearing dates:

17 April 2025

Date of orders:

30 June 2025

Decision date:

30 June 2025

Jurisdiction:

Consumer and Commercial Division

Before:

K Mortensen, Senior Member

Decision:

1    The application is dismissed in entirety.

2    The following directions apply in relation to the Respondent’s application for costs:

(1)      the Respondent (cost applicant) must, within 14 days of these orders, give the Applicant (the costs respondent) and the Registry any submissions and documents the costs applicant intends to rely on in relation to the application, including on the question as to whether costs should be fixed or assessed;

(2)       the costs respondent must, within 14 days after receiving the submissions and documents of the costs applicant, give the costs applicant and the Registry any submissions and documents the costs respondent intends to rely on in response to the application for costs;

(3)      the costs applicant must, within 7 days after receiving the submissions and documents of the costs respondent, give the costs respondent and the Registry any additional submissions and documents the costs applicant intends to rely on in response to the costs respondent’s submissions and documents;

(4) the parties are to include, in their written submissions concerning the application for costs, their submissions as to whether they consider that a hearing in relation to the application can be dispensed with pursuant to s50 of the Civil and Administrative Tribunal Act 2013 (NSW).

Catchwords:

LEASES AND TENANCIES — Legislation protecting tenants — Residential (Land Lease) Communities Act 2013 (NSW)

LEASES AND TENANCIES — NSW Civil and Administrative Tribunal — Jurisdiction and power

Legislation Cited:

Australian Consumer Law

Civil and Administrative Tribunal Act 2013 (NSW)

Fair Trading Act 1987

Residential (Land Lease) Communities Act 2013 (NSW)

Residential (Land Lease) Communities Regulation 2015

Cases Cited:

Meatheringham v Gateway Redhead Operations [2018] NSWCATCD 13

Pollock v Hicks [2015] NSWCA 122

Category:

Principal judgment

Parties:

Toni Howard (Applicant)
Sea Spirit Lifestyle Management Pty Ltd (Respondent)

Representation:

Mr Peter Crawford (Applicant)

Long Saad Woodbridge Lawyers (Respondent)

File Number(s):

2024/3628877

Publication restriction:

Nil

REASONS FOR DECISION

1. The Applicant in these proceedings, Ms Howard is a homeowner in a residential community operated by the Respondent, Sea Spirit Lifestyle Management Pty Ltd.

2. The Applicant seeks a total of 17 orders relating to various disputes, including the level of site fees, the state of the community’s facilities, and the terms of her Purchase Agreement and Site Agreement.

3. For the reasons that follow, the application is dismissed in its entirety.

Background

4. The Applicant is the lessee of a lot within the Links Lifestyle Resort (“the community”), a residential community governed by the Residential (Land Lease) Communities Act 2013 (NSW) (“RLLCA”).

5. The Respondent is the operator of the community. The land is owned by Sea Spirit Lifestyle South West Rocks Pty Ltd, and the dwellings were constructed by Sea Spirit Construction Management Pty Ltd. The latter companies are not respondents to this application.

6. On or around 26 October 2021, the Applicant entered into an agreement with Sea Spirit Lifestyle South West Rocks Pty Ltd to simultaneously purchase her house and lease the land on which it was built. At the same time, she entered into a site agreement with the Respondent (‘the Site Agreement’). The Applicant occupied the site from about February 2022.

7. The development of the community has proceeded in stages. At the time the Applicant entered into her agreements, she was aware that the development was to be carried out in stages and that not all facilities would be available from commencement.

8. A number of disputes have arisen between the parties, and by application to the Tribunal made 30 September 2024, the Applicant seeks determination of those disputes.

9. The matter was heard on 17 April 2025. The Applicant was represented by Mr Neville Crawford. The Respondent was represented by its solicitor, Mr Madhavji, whom appeared by video link. Mr Cedric Rodrigues, a director of the Respondent, was also present with Mr Madhavji on that video link, and gave sworn evidence at the hearing.

Jurisdiction

10. The Tribunal’s power to hear and determine this matter is conferred by statute. The Civil and Administrative Tribunal Act 2013 (NSW) (“CATA”) establishes the Tribunal and outlines its general powers. Sections 28 and 29 CATA confer jurisdiction upon the Tribunal in certain circumstances which include where it is conferred by other legislation.

11. The specific enabling legislation in this instance is the RLLCA. Section 156(1) RLLCA expressly provides that a homeowner may apply to the Tribunal for the determination of a dispute relating to a right or obligation under the RCA or under the Site Agreement. The Applicant is a home owner within the meaning of s 4 RLLCA.

12. Section 157 RLLCA grants the Tribunal a broad range of order making powers to resolve disputes. These powers include making orders for the payment of money, restraining a breach of the RLLCA or Site Agreement, and any other ancillary orders the Tribunal considers necessary or desirable to resolve disputes. Accordingly, other than in certain circumstances articulated by the reasons that follow, the Tribunal is satisfied that it has the jurisdiction to hear this application and determine the issues in dispute between the parties.

Evidence

13. In reaching the conclusions in this matter, the Tribunal has had regard to the following:

1. five (5) documents lodged with the Tribunal by the Applicant, marked as Exhibits A1 to A5 respectively, collectively containing the Applicant’s submissions, copies of agreements, correspondence with the Respondent and the local council, photographs of the community, and material relating to the various orders sought in the application;

2. two (2) volumes of documents lodged with the Tribunal by the Respondent on 8 January 2025, marked as Exhibit R1, which included a written outline of submissions, affidavits of Mr Cedric Rodrigues and Ms Kylie Jones, the Resort Manager.

14. Within those exhibits were a number of documents, including a copy of the Applicant’s Site Agreement, the Purchase Agreement, the Approvals of Kempsey Shire Council, and correspondence between the parties regarding the site fee increases and the development of the community facilities.

15. Where relevant, the specific documentary and oral evidence relied upon are described below in respect of the Tribunal’s findings.

The Orders Sought

16. The written submissions of the Applicant foreshadowed an application for 27 orders to be considered by the Tribunal.

17. The Tribunal attempted to methodically address each of the orders sought by the Applicant. The first 17 applications took almost four hours to be heard, against an allocated hearing time of three hours.

18. Towards the end of the third hour of the hearing, it was suggested to Mr Crawford that it may be necessary to adjourn the remainder of the hearing to be heard at another half day allocation so that he would be able to properly particularise the remaining orders sought in a similar fashion to those already heard.

19. In response to that suggestion, Mr Crawford suggested that the Tribunal could formulate the remainder of the orders to be made by reference to the submissions and evidence tendered.

20. Whilst the Tribunal accepts that the Applicant may have legitimate frustrations as to the perceived non completion of facilities and compliance issues, the onus must remain on the Applicant to identify the correctly identify the Respondent as the correct respondent for each claim and to establish a clear legal basis under the relevant legislation for each order sought. In many instances, that was not achieved.

21. The principles concerning the assistance a Court or Tribunal is required to give a self represented litigant were considered by the Court of Appeal in Pollock v Hicks [2015] NSWCA 122 at [91]:

“... In Bauskis v Liew [2013] NSWCA 297 at [67]- [70] (Gleeson JA; Beazley P and Barrett JA agreeing), the following propositions which emerge from those authorities were identified.

First, the Court’s obligation in the case of a self-representedlitigant is to give sufficient information as to the practice and procedure of the Court to ensure that there is a fair trial to both parties. The application of this principle will vary depending upon the circumstances of the case: see Jae Kyung Lee v Bob Chae-Sang Cha [2008] NSWCA 13 per Basten JA at [48]; Abram v Bank of New Zealand (1996) ATPR 41-507, 43,341, 43,347; Microsoft Corporation v Ezy Loans Pty Ltd [2004] FCA 1135; (2004) 63 IPR 54; Pezos v Police [2005] SASC 500; (2005) 94 SASR 154.

Secondly, the Court’s duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. This is why the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just: see Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100at [95]; Barghouthi v Transfield Pty Ltd [2002] FCA 666; (2002) 122 FCR 19 at 23; NAGA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 944 at [11]; Nagy v Ryan [2003] SASC 37 at [52]- [53].

Thirdly, the duty of a trial judge to assist an unrepresented litigant does not extend to advising the litigant as to how his or her rights should be exercised. That is, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant: see Bhagwanani v Martin [1999] SASC 406; (1999) 2004 LSJS 449; Clark v State of New South Wales (No 2) [2006] NSWSC 914.

Fourthly, the trial judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness. In this regard, an unrepresented party is as much subject to the rules as any other litigant: Rajski v Scitec Corporation Pty Ltd (Court of Appeal, 16 June 1986, unreported) per Samuels JA at 14.”

22. Accordingly, in dealing with Mr Crawford’s submission that it was open to the Tribunal to formulate the orders numbered 18 and onwards from material already before it, the Tribunal declined to do so and indicated to Mr Crawford that it was not for the Tribunal to articulate his case for him. In reply to that declination, at approximately three hours and forty three minutes into the hearing, Mr Crawford stated;

“I’ll leave it up to you to go through them and you if you don’t want to take any notice of them, that’s fine. That’s OK by us.”

23. The Tribunal understood that statement to be an abandonment of the application for all outstanding orders from 18 and onwards and indicated the same to Mr Crawford. Mr Crawford then confirmed that those further applications would not be pressed, and that he did not wish the matter to be adjourned to enable the remainder to be heard. The Tribunal has proceeded on the basis that the application for orders 18 through 27 were withdrawn and accordingly, no determination has been made in respect of them.

24. The 17 orders applied for were as follows;

1. an order that the Respondent is to provide a construction program detailing the completion dates for all outstanding facilities;

2. an order declaring that the use of an accumulated Consumer Price Index (CPI) method for calculating site fee increases is illegal and is not to be used;

3. an order reducing all current site fees by fifty percent;

4. an order that the Respondent provide independent financial evidence that it is a viable business capable of completing the development;

5. order 5 was withdrawn as it agitated the same issues as order 1;

6. an order that the Respondent provide the Council approved landscaping and fencing Plans with a detailed construction schedule and forecast completion date;

7. an order amending the Applicant’s purchase agreement for her dwelling within the community to reflect the Applicant’s view that her dwelling is a permanent dwelling and not a manufactured home;

8. an order altering the Applicant’s purchase agreement for her dwelling within the community to reflect her view that she is the owner of the solar system installed over her dwelling;

9. an order altering clause 40 of the Site Agreement concerning the removal of the dwelling, on the basis that it is an unfair contract term;

10. an order altering clause 64 of the Site Agreement on the basis of her view that her dwelling is a permanent dwelling;

11. an order altering Schedule 2 of the Site Agreement, titled “Condition of Site”;

12. an order that the Respondent provide certification that the Applicant’s home has been built in accordance with the development application;

13. an order that the Respondent provide a NSW Rural Fire Service “occupation certificate” for the Applicant’s dwelling;

14. order 14 was withdrawn as it agitated the same issues as order 12;

15. order 15 was not pressed by the Applicant;

16. an order that the Respondent adhere to development approval conditions by ensuring the dwelling is inspected by an approved “design consultant”; and

17. an order that the Respondent provide a geotechnical engineering report and engineering certification for the concrete slab of the Applicant’s dwelling.

25. Many of the orders sought fall outside the jurisdiction of the Tribunal in the context of this application. The application for those orders, whilst reflecting what appears to be the Applicant’s genuine and significant concerns, fundamentally misconceive the statutory role of the Respondent, Sea Spirit Lifestyle Management Pty Ltd, as the operator under the RLLCA. For clarity, those orders and their common jurisdictional difficulties are addressed together.

Common Issue of Jurisdictional Difficulties

26. The jurisdiction of this Tribunal in these proceedings is conferred by the RLLCA and the CATA. As has been said above, the primary source of the Tribunal’s power arises from ss 156 and 157 RLLCA, which allows the Tribunal, upon the application of a home owner, to make orders determining a dispute relating to a right or obligation arising under the RLLCA or from a Site Agreement within the meaning of s 4 RLLCA.

27. The evidence before the Tribunal clearly establishes that there are three distinct legal entities involved in the creation and management of the Links Lifestyle Resort. A recurring issue throughout the Applicant’s case is a failure to distinguish between the specific legal roles and responsibilities of those entities. The entities are as follows;

1. Sea Spirit Construction Management Pty Ltd is the developer and builder of the community. As such, it is the entity responsible for obtaining development approvals, constructing the dwellings in accordance with those approvals and relevant standards, and providing the necessary compliance certifications. That entity is not a party to these proceedings.

2. Sea Spirit Lifestyle South West Rocks Pty Ltd is the land owner and vendor of the dwellings sold within the community. That is the entity that sold the dwelling to the Applicant under the purchase agreement and that entity is not a party to these proceedings.

3. Sea Spirit Lifestyle Management Pty Ltd is the operator that manages the community. It has an ongoing relationship with the Applicant which is governed by the Site Agreement and the RLLCA. That entity is the Respondent to these proceedings.

28. The Tribunal’s jurisdiction is confined to the rights and obligations that exist between the Applicant as homeowner and the Respondent as operator under the RLLCA and the Site Agreement. It cannot, in these proceedings, make orders which impose obligations upon the builder or the vendor, nor can it make orders that compel the intervention or usurp the functions of other statutory authorities such as Kempsey Shire Council or the NSW Rural Fire Service.

The Home Building Act 1989

29. Orders 1, 6, 12, 13, 16, and 17 seek to compel the Operator to provide construction schedules, landscaping plans, and various building certifications. Those matters relate directly to the construction of the dwelling and the satisfaction of development consent conditions. There was a suggestion by Mr Crawford at the hearing that the Tribunal has jurisdiction to make at least some of those orders under the Home Building Act 1989 (‘HBA’).

30. Whilst the Tribunal has jurisdiction over certain residential building disputes, an application for orders to be made under the HBA must be brought against the builder who carried out the work, which in this case, is Sea Spirit Construction Management Pty Ltd. The Applicant has brought her claim against the community operator, which is the incorrect respondent for a HBA claim. Therefore, the Tribunal’s jurisdiction under the Home Building Act 1989 is not enlivened.

Australian Consumer Law

31. Orders 7 and 8 seek to alter the terms of the Applicant’s completed Purchase Agreement. In submissions made at the hearing, Mr Crawford suggested that the Tribunal had power to amend the Purchase Agreement under the unfair contract provisions of the Australian Consumer Law (ACL).

32. Whilst the Tribunal does have jurisdiction to hear certain consumer claims under the Fair Trading Act 1987 (‘FTA’) and grant remedy under the ACL, that jurisdiction is not engaged here. Such a claim must be brought against the supplier party to the contract, which in this case is the vendor of the Applicant’s dwelling, Sea Spirit Lifestyle South West Rocks Pty Ltd, rather than the operator of the community, who is the respondent to these proceedings. There is also some difficulty in that the Applicant has not properly commenced proceedings under the FTA for remedy under the ACL or articulated that claim at all in her application.

33. The present application is brought solely under the RLLCA, and a mere assertion of an unfair contract does not enliven the Tribunal’s jurisdiction under a different legislative scheme.

Common Issue of the Characterisation of the Applicant’s Dwelling

34. A central issue underpinning the applications for orders 7, 9, 10 and 11, is the Applicant’s contention that her dwelling is a “permanent dwelling” and not a “manufactured home”. She submits that because it is constructed on a concrete slab, it is immovable and therefore cannot be properly categorised as a manufactured or relocatable home for the purposes of the RLLCA.

35. The legal status of a dwelling in a residential community is not determined by a subjective assessment of its mobility, but by the legislative framework under which the community was approved and established, and the specific terms of the agreements entered into by the parties.

36. The most compelling evidence as to the legal status of the dwelling comes from the consent and approval documents issued by the Principal Certifying Authority. The Respondent has tendered in evidence the Notice of Installation for the Applicant’s dwelling, which was granted by Kempsey Shire Council in February 2022. That document has the effect of legally classifying the Respondent’s dwelling as a manufactured home.

37. The Tribunal must give significant weight to that classification. The dwelling is lawfully situated on the site only by virtue of the approvals granted by the Council. The Applicant cannot now ask this Tribunal to disregard the legal status conferred upon her dwelling by a statutory authority. The fact that the home is situated on a concrete slab does not, of itself, alter its legal character from that which was approved. It is common for manufactured homes in modern land lease communities to be affixed to concrete slabs for stability and amenity. That does not transform them into “permanent” dwellings for the purposes of the legislative schemes applicable to the planning, construction and maintenance of those dwellings within the communities.

34. The Tribunal finds as both a matter of fact and of law that the Applicant’s dwelling is a “manufactured home” within the meaning of the RLLCA and the relevant planning instruments. The Applicant’s submissions to the contrary are rejected.

Application of Jurisdictional Principles to the Orders Sought

Order 1 (Construction Program) and Order 6 (Landscaping Plans) 

39. The Applicant seeks to compel the Respondent to provide detailed schedules for works being undertaken by the Builder, Sea Spirit Construction Management Pty Ltd. The obligation to create and execute such plans lies with the Builder. These are not documents the Respondent is required to either possess or provide to residents under the RLLCA or the Site Agreement.

Order 4 (Financial Viability): 

40. The Applicant seeks an order compelling the Respondent to provide evidence of its financial solvency, due to concerns about the Builder’s capacity to complete the project. The financial solvency of the Respondent is a commercial matter for that company and its directors. The RLLCA does not grant the Tribunal the power to conduct an inquiry into an operator’s finances upon the application of a home owner.

Order 7 (Permanent Dwelling) and Order 8 (Solar System Ownership): 

41. These applications seek to alter the terms of the completed Purchase Agreement between the Applicant and Sea Spirit Lifestyle South West Rocks Pty Ltd, as vendor for the dwelling purchased by the Applicant. The Tribunal has no jurisdiction to rewrite a contract of sale now completed, particularly in circumstances where the vendor is not a party to these proceedings.

Orders 12, 13, 16 and 17 (Certifications): 

42. The Applicant seeks an order compelling the Respondent to provide a range of building certifications, including certificates of general compliance, fire safety, geotechnical suitability and engineering adequacies. The responsibility for obtaining those certifications during construction lies with the Builder, Sea Spirit Construction Management Pty Ltd, and the Principal Certifying Authority which in this case, is Kempsey Shire Council. The Respondent cannot be ordered to produce or procure certificates for work it did not perform or oversee.

Determination

43. Accordingly, the applications for orders 1, 4, 7, 8, 12, 13, 16, and 17 are dismissed for want of jurisdiction. The remainder of the orders are considered below.

Order 2: Declaration that the Site Fee Calculation Method is Illegal

Background

44. The Applicant seeks an order declaring that the Respondent’s use of an “accumulated CPI method” for calculating site fee increases is illegal and that the Respondent be ordered not to use that method in the future.

Applicant’s Submissions

45. The Applicant submitted that the Respondent’s method of accumulating CPI over a period of years where previous increases had been paused was an “illegal method of calculation”. It was contended that the regulations only permit one method for increasing site fees and that a combination or accumulation of methods is not allowed. The basis of that claim appears to be that because the site fees were “paused” following an agreement with the homeowners, any right to those historical CPI based increases was extinguished.

Respondent’s Submissions

46. The Respondent submitted that the application is out of time. Mr Madhavji argued that any challenge to the site fee increase notice must be brought within the time limits prescribed by the RLLCA, and that has not occurred. The Respondent also submitted that following the initial suspension of a fee increase, there was an informal meeting and subsequent agreement with the homeowners about how future increases would be dealt with, which included catching up on previously paused increases once facilities were completed. Therefore, the Respondent contends, its actions are consistent with subsequent agreements and understandings reached with the residents.

Consideration

47. It is first necessary to address the jurisdictional issue of time. Section 69 RLLCA provides for compulsory mediation in relation to a disputed site fee increase. If mediation fails, s 71(3) RLLCA then requires an application to the Tribunal to be made within 14 days of the date of the failed mediation.

48. The Applicant in this matter has failed to comply with the compulsory mediation requirements under s 69 RLLCA. Even if the Tribunal was somehow to overlook that failure, any application challenging a notice of increase must be brought promptly. The notices subject to this dispute were issued in May 2022 and April 2023, while the application was not filed until 30 September 2024. The Applicant is therefore significantly out of time to bring an application challenging those increases.

49. Whilst the Tribunal has a discretion to extend time under s 41 CATA, that power must be exercised judicially. Given the length of the delay and the prejudice to the Respondent in having to defend historical fee calculations after such a period, the Tribunal is not satisfied that it is appropriate to grant an extension of time in this instance.

Determination

50. The application is out of time and in any event, the Applicant has failed to establish that the Respondent’s method of calculating the site fee increase is contrary to the RLLCA.

51. The application for order 2 is dismissed.

Order 3: Reduction of Site Fees by Fifty Percent

Background

52. The Applicant seeks a substantial reduction in site fees, alleging that the Respondent has failed to provide the full range of facilities and amenities that were represented in the Disclosure Statement provided to her before she entered into the Site Agreement.

Applicant’s Submissions

53. The Applicant submits that there has been a significant and ongoing reduction in amenity due to the failure to complete key facilities. The specific facilities identified during the hearing as having been promised in the Disclosure Statement but not yet provided are the permanent community clubhouse and the men’s shed. The Applicant contends that the absence of these core facilities fundamentally alters the nature of the community for which she is paying site fees and that a fifty percent reduction is a just and fair compensation for this loss.

Respondent’s Submissions

54. The Respondent opposes the order. It argues that residents, including the Applicant, were aware at the time of purchase that the community was a staged development and that not all facilities would be available from the outset. The Respondent points to its provision of a temporary clubhouse as a measure to ensure residents have access to a communal space while construction is completed. The Respondent submits that it has provided additional facilities that were not in the original Disclosure Statement. Those facilities are a croquet court and a fenced dog park, both of which have added to the overall amenity of the community and should be considered as an offset against any delay.

Consideration

55. The Tribunal’s power to reduce site fees is found in s 64 RLLCA. To make such an order, the Tribunal must be satisfied that a ground in s 64(1) is established. That provision is reproduced below.

64 Power of Tribunal to reduce site fees

(1) The Tribunal may, on application by the home owner under a Site Agreement, make an order that the site fees payable under the agreement be reduced by an amount the Tribunal considers appropriate if it is satisfied--

(a) the amenity or standard of the community’s common areas has decreased substantially since the agreement was entered into, or

(b) a communal facility or service provided at the community when the agreement was entered into has been withdrawn or substantially reduced, or

(c) a communal facility or service as follows has not been provided at the community--

(i) a communal facility or service described in advertising, done by or for the operator, of which the home owner was aware before the Site Agreement was entered into,

(ii) a communal facility or service described in a document made available to the home owner by the operator before the Site Agreement was entered into.

56. The Applicant cause of action relies on s 64(1)(c) RLLCA, which applies where a communal facility or service described in a disclosure statement has not been provided.

57. It is not in dispute that the permanent clubhouse and the men’s shed were facilities described in the Disclosure Statement that have not yet been completed. Therefore, the Tribunal is satisfied that a ground for making an order under s 64 RLLCA has been established.

58. However, the establishment of a ground under s 64(1) RLLCA does not automatically result in an order being made. The decision to reduce site fees, and importantly, the quantum of any such reduction, is a discretionary matter for the Tribunal. This discretion must be exercised judicially and on the basis of the evidence presented.

59. The Applicant seeks a specific and substantial reduction of fifty percent. An applicant who seeks an order for a quantifiable adjustment to site fees must provide the Tribunal with an evidentiary basis upon which to make its calculations. In Meatheringham v Gateway Redhead Operations [2018] NSWCATCD 13, the Tribunal declined to make the orders sought for adjustments to site fees as there was no evidentiary basis upon which the necessary calculations could be substantiated.

60. The Applicant in this matter has failed to tender any valuation evidence, comparative site fee analysis from other communities, or any other material that would assist the Tribunal in quantifying the monetary value of her claimed loss of amenity.

61. A party cannot simply assert a figure, whether for an increase or a reduction, and expect the Tribunal to accept it without a proper evidentiary foundation. The onus rests on the party making the claim to provide the evidence upon which a reasoned, quantitative decision can be made.

62. Further, in exercising its discretion, the Tribunal must consider all the relevant circumstances. That includes the Respondent’s evidence that it has provided a temporary clubhouse to mitigate the impact of the construction delay. It also includes the undisputed evidence that the Respondent has provided a croquet court and a fenced dog park, neither of which were foreshadowed by the original representations and which now provide additional amenity to the residents. These additional facilities must be weighed against the delayed provision of certain other facilities.

Determination

63. While the Applicant has established that the permanent clubhouse and men’s shed have not yet been provided, there has been a failure to provide any evidence upon which the Tribunal could reasonably quantify the value of that loss of amenity or justify the fifty percent reduction sought. The provision by the Respondent of a temporary clubhouse and other additional facilities further complicates any such assessment and in the Tribunal’s view, mitigates the loss claimed.

64. The application for order 3 is dismissed.

Order 5: Respondent to Provide a Construction Schedule

65. The application for order five was abandoned by the Applicant at the hearing as it appeared to be a repetition of a previous order sought.

66. Accordingly, the Tribunal makes no determination in respect of Order 5.

Order 6: Respondent to provide Approved Landscaping and Fencing Plans.

Background

67. The Applicant seeks an order compelling the Respondent to produce the approved landscaping and fencing plans for the entire residential community.

Applicant’s Submissions

68. The Applicant, through Mr Crawford, submitted that these plans are essential for residents to understand the operator’s obligations regarding the final state of the community. He asserted that there are currently “no fences and no security at the site” and that the plans are required to enforce what the Applicant believes to be the Respondent’s duties under the development approval. The underlying submission is that residents have a right to be provided with these documents directly by the operator.

Respondent’s Submissions

69. The Respondent opposes this order. Its primary submission is that the documents sought are a matter of public record and are therefore readily accessible to the Applicant without needing a Tribunal order. The Respondent states that the approved plans are available for inspection through the NSW Government Planning Portal and the local council’s own online systems. During the hearing, Mr Madhavji confirmed this position and offered, as a practical measure, to place a notice on the community notice board advising residents on how to access these public documents. The Respondent argues that it has no statutory or contractual obligation to act as a document retrieval and delivery service for residents.

Consideration

70. The Tribunal’s jurisdiction is to resolve disputes regarding rights and obligations that arise under the RLLCA or the Site Agreement. The Applicant has failed to identify any provision in either the RLLCA or the Site Agreement that imposes an obligation on the Respondent to provide individual homeowners with copies of plans that form part of the development approval.

71. The Tribunal accepts the Respondent’s submission that the documents sought are public documents. Plans approved by a local council as part of a development application process are available for public inspection.

72. Further, the enforcement of a development approval is the statutory responsibility of the relevant planning authority, which in this case, is Kempsey Shire Council. If the Applicant has concerns that the development is not proceeding in accordance with the approved landscaping or fencing plans, her proper course of action is to raise those concerns with the Council. It is not the role of this Tribunal to enforce a Council’s development approvals.

73. The Tribunal notes the Respondent’s offer in good faith made during the hearing to advise residents on how to access the plans. That is a reasonable and practical solution that addresses the Applicant’s underlying desire for information without the need for any order.

Determination

74. The Tribunal finds that there is no obligation upon the Respondent under the RLLCA or the Site Agreement to provide the Applicant with the documents sought. The documents are a matter of public record and are accessible to the Applicant through the appropriate public authorities. The Tribunal has no jurisdiction to make the order requested.

75. The application for order 6 is dismissed.

Order 9: Alteration of Clause 40 of the Site Agreement

Background

76. The Applicant seeks an order to alter Clause 40 of her Site Agreement. This clause governs the process and responsibilities associated with the removal of the dwelling from the residential site. The clause permits the Applicant to remove her dwelling, provided that she accepts responsibility for the safe and proper removal and bears the costs and expenses associated with disconnecting utilities and returning the lot to a “safe, clean, level and tidy condition”.

Applicant’s Submissions

77. The Applicant contends that Clause 40 is an unfair contract term. The crux of her submission is that her dwelling is constructed on a concrete slab and is, in her view, a permanent and immovable structure. She argues that a contractual term which requires her to bear the significant costs of removing a dwelling that is not, in reality, relocatable is fundamentally unfair and creates a significant imbalance in the parties’ rights.

Respondent’s Submissions

78. The Respondent submits that Clause 40 is not an unfair contract term and that there is no basis for the Tribunal to alter it. It argues that the clause does not create an imbalance of power, as it does not compel the Applicant to remove the dwelling. The Respondent’s position is that the clause merely and reasonably outlines the Applicant’s responsibilities for costs should she choose to exercise her right to remove the home from the site.

Consideration

79. This application concerns a specific term within the Site Agreement. Pursuant to section 157 of the Act, the Tribunal has jurisdiction to determine disputes arising from a Site Agreement. That jurisdiction includes the power to consider whether a term is unjust.

80. However, the Applicant’s submission that the term is unfair is entirely predicated on her assertion that the dwelling is a permanent, immovable structure. The Tribunal has found that the dwelling is, as a matter of law and fact, a manufactured home. The legislative scheme for residential land lease communities, and the agreements made under it, are built on the understanding that the homes are manufactured and are capable of being removed from a site.

81. The Tribunal accepts the Respondent’s submission that Clause 40 does not impose a unilateral obligation on the Applicant. It is a contingent clause. It does not force the Applicant to remove her home. It simply and reasonably allocates the financial responsibility for that action to the person who elects to take it. A term that allocates the cost of an action to the party who freely chooses to take that action does not, on its face, create the ‘significant imbalance’ in the parties’ rights and obligations.

82. The Applicant has failed to provide any evidence to suggest that this clause is contrary to industry practice or otherwise operates in a manner that is unjust. The clause simply provides a clear framework for a process, being the removal of a home.

Determination

83. The Applicant has failed to establish that Clause 40 of the Site Agreement is an unfair contract term. Her argument is based on a mistaken premise about the legal status of her dwelling, and the clause itself is a reasonable and contingent allocation of responsibilities.

84. The application for Order 9 is dismissed.

Order 10: Amendment of Clause 64 of the Site Agreement

Background

85. The Applicant seeks an order to amend, or have declared unfair, Clause 64 of the Site Agreement. The basis of this claim is intrinsically linked to the Applicant’s contention, already addressed, that her home is a permanent dwelling and not a manufactured home as described in the agreement.

Applicant’s Submissions

86. The Applicant argues that because her home is a permanent structure, Clause 64, which is drafted with the assumption that it applies to a manufactured home, is fundamentally inappropriate and unfair. She submits that the standard terms and obligations contained within this clause do not reflect the physical reality of her dwelling. The Applicant’s position is that the Site Agreement document needs to be “drafted in accordance with what it actually is”, meaning a permanent dwelling.

Respondent’s Submissions

87. The Respondent submits that this application has no merit. It argues that since the dwelling is, as a matter of law and planning approval, a manufactured home located within a land lease community, the terms of the standard Site Agreement, including Clause 64, are entirely appropriate and legally compliant. The Respondent’s position is that the Applicant’s argument is based on a false premise that has already been addressed.

Consideration

88. The success of the application for this order is entirely dependent on the Applicant’s primary assertion that her home is a permanent dwelling. The Tribunal has found, based upon the evidence of the Council approvals and the legislative framework, that the Applicant’s dwelling is a “manufactured home” for the purposes of the RLLCA and the Site Agreement. The Applicant’s personal view on the immovability of the structure does not alter its legal classification.

89. As the Tribunal has rejected the foundational premise of the Applicant’s argument, the submission that clause 64 is inappropriate or unfair must also fail. If the dwelling is a manufactured home, then a clause in the Site Agreement designed to apply to a manufactured home cannot be deemed unjust on that basis alone. The Applicant has advanced no other argument or evidence to suggest that Clause 64 contravenes the Act or is otherwise unjust in its operation.

Determination

90. The Applicant’s submission is contingent upon a finding that her dwelling is a permanent structure. The Tribunal has already found that her dwelling is a manufactured home.

91. The application for Order 10 is dismissed.

Order 11: Amendment of Schedule 2 of the Site Agreement.

Background

92. The Applicant seeks an order to “void” or alter Schedule 2 of the Site Agreement, which is the “Site Condition Report”. The basis for this application is, again, linked to the Applicant’s central contention that her dwelling is a permanent structure and not a relocatable manufactured home.

Applicant’s Submissions

93. The Applicant, through Mr Crawford, argues that the standard form “Site Condition Report” as set out in Schedule 2 of the Residential (Land Lease) Communities Regulation 2015 is inappropriate for her dwelling. He submits that because the home is a permanent structure, the standard document, which is designed for a site upon which a relocatable home sits, is incorrect and should be declared void. The Applicant’s requested order is that the Tribunal make a declaration that the description in the report of “what is currently located on the residential site” (“the manufactured home”) is incorrect.

Respondent’s Submissions

94. The Respondent opposes this order. It submits that the “Site Condition Report” is a standard, mandatory document prescribed by the Regulations. As the Applicant’s home is legally classified as a manufactured home within a residential land lease community, the use of the standard form is not only appropriate but required by law. The Respondent argues that the Applicant’s dissatisfaction with the legal classification of her home does not create a basis for the Tribunal to declare a prescribed and legally compliant part of her agreement void.

Consideration

95. This application seeks to challenge the validity of a standard, prescribed form that is a mandatory part of a Site Agreement under the RLLCA and delegated legislation.

96. Firstly, the Tribunal notes that the Applicant’s argument is entirely circular and rests on the same flawed premise as her applications for orders 7, 9 and 10 that her home is not a manufactured home. The Applicant argues that the Site Condition Report should be declared void because it refers to a “manufactured home”, and she contends her dwelling is not one. As the Tribunal has determined conclusively, the dwelling is, as a matter of law and fact, a manufactured home. Therefore, the premise of the Applicant’s argument is incorrect.

97. Secondly, Schedule 2 of the Residential (Land Lease) Communities Regulation 2015 sets out the standard form of the Site Condition Report. The use of this report is a standard component of entering into a Site Agreement. The document in the Applicant’s Site Agreement appears to be in the standard form. The Tribunal has no power to declare a provision of a regulation or a term of an agreement that complies with that regulation to be void or unfair simply because a party disagrees with the factual or legal reality it reflects.

98. The Applicant cannot use the Tribunal as a mechanism to retrospectively change the fundamental legal character of her dwelling and the agreements she has entered into. The Site Condition Report accurately reflects the nature of the tenancy, the lease of a residential site upon which a manufactured home is situated.

Determination

99. The Site Condition Report (Schedule 2) is a standard document prescribed by the governing regulation. The Tribunal finds it is appropriate for the Applicant’s Site Agreement.

100. The Applicant’s submission is founded on the incorrect premise that her dwelling is not a manufactured home.

101. The application for order 11 is dismissed.

Order 14: Respondent to Adhere to Development Approval Conditions

Background

102. Order 14, as clarified by the Applicant during the hearing, is an application for an order that the Operator adhere to the conditions of the development approval, specifically as it relates to the Applicant’s dwelling. The order sought is, in substance, very similar to the relief sought in Orders 12 and 13.

Applicant’s Submissions

103. The Applicant submits that the Respondent is failing to ensure that the community, and her home in particular, complies with the development approval issued by the Council. She argues that because she has a Site Agreement with the Respondent, the Respondent is responsible for ensuring the entire site, including her dwelling, meets all legal and planning requirements. She contends that the Tribunal has the power to make a general order compelling the Respondent to achieve compliance with the approval.

Respondent’s Submissions

104. The Respondent opposes the order, essentially reiterating its submissions in respect of Orders 12 and 13. It argues that the responsibility for complying with the construction related conditions of a development approval rests with the builder who carried out the work and the developer who obtained the approval. The Respondent contends that it is not the entity that holds the development consent and its obligations as an operator under the RCA do not extend to being the enforcer of Council planning instruments.

Consideration

105. The order sought is for the Tribunal to issue a general direction to a party to comply with the terms of a legal instrument issued by a statutory authority.

106. The enforcement of a development consent is the statutory function, in this case, of the local Council. The Council has a range of powers to investigate breaches and issue orders to compel compliance. The RCA does not provide this Tribunal with a parallel, co-extensive jurisdiction to enforce development approvals. To make such an order would be for the Tribunal to usurp the statutory role of the local planning authority.

107. As established in relation to the previous orders, the dispute before this Tribunal must arise from the rights and obligations under the RLLCA or the Site Agreement. While those instruments presuppose a legally established community, they do not incorporate the entirety of the development consent as enforceable terms of the tenancy between the home owner and the Respondent. The Applicant has not pointed to a specific term in the Site Agreement or a provision in the RCA which has been breached that an order for general compliance with the development approval would remedy.

108. The orders sought are too broad and lack specificity. An order simply to “comply with the development approval” would be difficult to enforce and does not identify a specific, remedial action that is within the Respondent’s power to perform in its capacity as the community operator.

Determination

109. The Tribunal’s jurisdiction is limited, in the present case, to resolving disputes under the RCA and the Site Agreement. It does not have the power to act as an enforcement authority for local government development approvals.

110. The order sought is directed at obligations that rest with the builder and developer which are enforced by the local Council, not the community operator.

111. The application for Order 14 is dismissed.

Order 15: Not Pressed

112. During the hearing when the Tribunal sought to address this order, the Applicant and her representative did not make any submissions in support of it.

113. As the Applicant, when given the opportunity, did not pursue this claim or provide any basis upon which the Tribunal could consider it, the Tribunal finds that the application for Order 15 was abandoned or not pressed by the Applicant at the hearing.

114. Accordingly, the Tribunal makes no determination in respect of Order 15.

Conclusion

115. The Applicant has raised a multitude of concerns regarding her residency at the Links Lifestyle Resort. While her grievances appear to be sincerely held, the majority of the orders sought fall outside the jurisdiction of the Tribunal or are otherwise misconceived. The Tribunal’s power is confined to resolving disputes that arise under the RLLCA and the Site Agreement between her, as homeowner, and the Respondent, as operator.

116. The Applicant has consistently sought to hold the Respondent responsible for the obligations of the builder, developer and vendor of her home, who are separate legal entities and not parties to these proceedings. Those claims included claims relating to the original construction and certification of her home, the failure to complete community facilities, and the contractual terms of her purchase agreement. The Tribunal does not have jurisdiction over those matters.

117. For those matters over which the Tribunal does possess jurisdiction, being the site fee increases and the perceived reduction in amenity, the Applicant has not provided sufficient evidence to discharge her onus of proof. The Tribunal cannot make orders for financial relief, such as a significant reduction in site fees, in an evidentiary vacuum. An applicant must provide a sound evidentiary basis to quantify their claim, which has not occurred in this case.

118. For the reasons set out above, the Applicant has failed to establish her case for any of the orders sought. The application must therefore be dismissed in its entirety.

Costs

119. The Respondent has indicated the intention to make an application for the award of costs against the Applicant.

120. Section 50(2) CATA allows the Tribunal to make an order dispensing with a hearing to determine one or more issues. To do so it must be is satisfied that the issues can be adequately determined by considering written submissions after it has afforded the parties an opportunity to make submissions about the proposed order and has considered those submissions.

121. That is the course that will be taken here and accordingly, orders are made for submissions on the award of costs.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 13 August 2025