Tricare v Allen

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Tricare v Allen and others [2016] NSWCATCD 25

Hearing dates:

29 February 2016

Decision date:

06 April 2016

Jurisdiction:

Consumer and Commercial Division

Before:

S Westgarth, Deputy President

Decision:

(1) The residential tenancy agreements of each of the respondents is hereby terminated;

(2) The respondents will deliver up vacant possession of their respective residential sites on or before 20 September 2016;

(3) Notwithstanding order 2, the orders for possession are suspended until the respondents receive payment in full, of the amounts determined in these reasons to be the values of the dwellings (or until payment in full is tendered) namely:

Site 39 $60,000
Site 51 $85,000
Site 54 $20,000
Site 58 $45,000
Site 59 $40,000

(4) Once payment in full is made or tendered by the applicant to the respondents then in respect of those respondents who have received payment in full or been tendered payment in full the suspension of the order for possession is lifted; and

(5) Liberty to renew.

Catchwords:

Residential Parks Act – termination of residential site agreements, value of dwelling, agreement to buy dwelling

Legislation Cited:

Residential Parks Act 1998
Supreme Court Act 1970
Residential (Land Lease) Communities Act 2013
Interpretation Act 1987

Cases Cited:

Allan v Tricare (Hastings) Pty Ltd & Anor [2015] NSWSC 416
Haraba Pty Ltd v Castles [2007] QCA 206
Pearce v Cocchiaro [1977] CLR 600
Cooper Brooks (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] CLR 297
Edelbrand Pty Ltd v HM Australia Holdings Pty Ltd [2012] NSWCA 31
AB v Western Australia [2001] HCA 42
Fitzroy Dental Pty Ltd v Metropole Management Pty Ltd and Anor [2013] VSC 344

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Tricare (Hastings) Ltd (Applicant)
Susan Jane Allen (Respondent)
Beryl Edith Anderson (Respondent)
Judy Tucker (Respondent)
Phillip Tucker (Respondent)
Kevin and Lorraine Byng (Respondent)

Representation:

Counsel: S Berveling (Appellant)
M McMahon (Respondents)
Solicitors:Minter Ellison (Appellant)
Paul Smyth, Tenants Union of New South Wales (Respondents)

File Number(s):

RP 13/34743, 13/34744, 13/34745, 13/34746 and 13/34741

Publication restriction:

Unrestricted

reasons for decision

Introduction

1. The applicant is a park owner and operates a residential park at Hastings Point New South Wales. The applicant seeks the following orders against the respondent residents:

1. An order terminating their respective residential tenancy agreements;

2. An order that the respondents deliver up vacant possession on or before 20 September 2016; and

3. A determination of value of the respondents’ respective dwellings.

2. There are six respondents. There are five residential tenancy agreements in respect of five different sites. One of those sites is owned by two people. The sites are known as sites 39, 51, 54, 58 and 59. Each of the residential tenancy agreements are residential site agreements. Those agreements are defined in s 3 of the Residential Parks Act1998 NSW (the RPA).

3. The Tribunal has jurisdiction to determine the applications by reason of the powers granted to it under the RPA.

4. The applicant has been granted development consent to develop the land…