Wooden v Hometown Australia Chain Valley Bay Pty Limited

Case •

[2022] NSWCATCD 181

•

19 September 2022

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

  • Amendment notes
Medium Neutral Citation: Wooden v Hometown Australia Chain Valley Bay Pty Limited [2022] NSWCATCD 181
Hearing dates: 11 August 2022
Date of orders: 19 September 2022
Decision date: 19 September 2022
Jurisdiction:Consumer and Commercial Division
Before: J Searson, General Member
Decision:

(1) The application is dismissed

Catchwords:

RESIDENTIAL (LAND LEASE) COMMUNITIES — Maintenance — Whether operator responsible for costs of repairs.

Legislation Cited:

Civil and Administrative Tribunal Act 2013

Residential (Land Lease) Communities Act 2013

Category:Principal judgment
Parties:

Anna Wooden (Applicant)

Hometown Australia Chain Valley Bay Pty Limited (Respondent)
Representation:

Applicant in person

Ms Lauder, area manager on behalf of the respondent
File Number(s): RC 22/25435
Publication restriction: Nil

REASONS FOR DECISION

  1. The applicant (“homeowner”) seeks orders pursuant to the Residential (Land Lease) Communities Act 2013 (NSW) (“RLLC”) requiring the respondent (“operator”) to pay for the costs of ongoing repairs to the external cladding on her home. The applicant has not set out in her application or submissions what section of the Residential (Land Lease) Communities Act 2013 (“RLLC”) she is reliant upon in seeking these orders.

  2. The respondent opposes the application.

Background

  1. The applicant entered into a Residential Site agreement with the predecessor of the respondent (INA Operations Pty Ltd as Trustee for INA Operations Trust #3 trading as Active Lifestyle Estates “Ingenia Lifestyle”) on or about 23 June 2016.

  2. The respondent in this matter is an “operator” as defined in s 4 of the RLLC and operates the community known as “Lakeside Lifestyle Community” (“the community”) and situated at 132 Findlay Avenue Chain Valley Bay NSW.

  3. The applicant is a “homeowner” as defined in s 4 of the RLLC and occupies site 10 within the community.

  4. The dispute in this matter is in relation to the construction of the applicant’s home, specifically the installation of external cladding by Ausconstruct in or about 2016. Ausconstruct were engaged by Ingenia Lifestyle (the previous operator of the community) and or Parkwood Homes (the manufacturer of the home).

  5. The applicant purchased her home in approximately 2016.

  6. The respondent purchased the community in 2018 from Ingenia Lifestyle, the previous operator.

  7. In or about 2020 there were a number of issues with the cladding and the respondent engaged and paid for AusConstruct to rectify these issues as a goodwill gesture. AusConstrcuct were the original installers engaged by Ingenia Lifestyle and / or Parkwood Homes at the time that the home was built in 2016.

  8. Since that time further issues and defects have arisen that the applicant seeks for the respondent to also be responsible for rectifying.

Jurisdiction

  1. The Tribunal has jurisdiction to hear and determine this matter under sections 156 and 157 of the RLLC and sections 28 and 29 of the Civil and Administrative Tribunal Act 2013.

Evidence

  1. The homeowner, Ms Wooden appeared by telephone and gave oral evidence under affirmation.

  2. Ms Lauder, area manager of the operator appeared by telephone and gave oral evidence under affirmation.

  3. Each party was provided with an opportunity of submitting documents in support of their case, an opportunity of giving oral evidence and cross examining each other in relation to the evidence presented to the Tribunal.

  4. The Tribunal has read and considered all of the documentary and oral evidence of the parties.

Homeowner’s case

  1. As noted above the applicant did not set out which section of the RLLC that she was reliant upon in seeking the orders in her application to the Tribunal.

  2. The applicant appears to be seeking the orders on the basis that in the past the operator had arranged for the repairs to her property, and that as these were inadequate that the operator should again be responsible for the undertaking of the necessary repairs.

  3. Further the applicant stated that she was unable to afford the repairs.

Operator’s case

  1. The operator submitted that the previous repairs had been organised by them and carried out by AusConstruct as a gesture of good faith.

  2. Further, that AusConstruct were the original installers who were engaged by the prior operator Ingenia Lifestyle and / or Parkwood Homes at the time that the applicant’s home was built in around 2016.

  3. It was the respondent’s position that any warranties associated with the building and any additional structure are held with either Ingenia Lifestyle, Parkwood Homes and/ or AusConstruct.

  4. The respondent submitted that it did not sell the home to the Applicant nor is it responsible for the construction of the home or the rear deck. It stated that Ingenia Lifestyle was the operator at the time of construction and that Ingneia Lifestyle sold the home to the applicant.

Consideration

  1. In order to determine this matter, the Tribunal needs to consider whether there is any liability for the respondent to be responsible for the repairs to the applicant’s home.

  2. The Tribunal has examined the site agreement entered into by the applicant and the previous operator. That site agreement contains a number of clauses which are relevant to the present dispute as follows:

Maintenance of residential site and common areas

19. You agree:

19.1 to maintain (subject to fair wear and tear) the home located on the residential site in a reasonable state of cleanliness and repair, and so as to be fit to live in, and…

…….

20. We agree:

20.2 not to intentionally or recklessly damage or destroy and of your property, or property of other occupants living with you, or of your guests, and …

MAINTENACE OF HOME AND ASSOCIATE STRUCTURES

39. You agree to maintain the home and any additions, alterations or extension in a condition satisfactory to us, having regard to their condition at the time they were installed on the site.

ACKNOWLEDGEMENT OF YOUR PROPERTY

58. You agree

58.1 that any dwelling, associated structure, shed, driveway, pathway, retaining wall or any structure or fixture including but not limited to any hardscape (for example, concrete slabs) or landscape on the site; and

58.2 that any plumbing or wiring that connects your dwelling or any of your structure to the utility services provided by the residential community is your property.

  1. The above clauses of the agreement set out the obligations with respect to the maintenance of the home. There does not appear to be any obligation contained in the agreement where the operator is liable for repairs to the homeowner’s property.

  2. The Tribunal has also examined the obligations of the operator and the homeowner as contained in the RLLC. These appear to mirror the obligations as contained in the site agreement. The RLLC states relevantly as follows:

36   Home owner’s responsibilities

A home owner has the following responsibilities—

…………………………..

(g)  to maintain (subject to fair wear and tear) the home located on the residential site in a reasonable state of cleanliness and repair, and so as to be fit to live in, and to keep the residential site tidy and free of rubbish,

(h)  to notify the operator as soon as practicable of—

(i)  any damage to the residential site, or

(ii)  any damage to the community’s common areas caused or permitted by the home owner, other occupants living with the home owner or guests of the home owner,

………………………..

(l)  otherwise, to comply with the site agreement and the community rules.

37   Operator’s responsibilities

(1)  The operator of a community has the following responsibilities—

(a)  to ensure that the community is reasonably safe and secure,

(b)  to take reasonable steps to ensure that the home owners—

(i)  always have access to their residential sites, and

(ii)  have reasonable access to the community’s common areas,

(c)  to maintain the community’s common areas in a reasonable state of cleanliness and repair, and so as to be fit for use by the home owners,

(d)  not to intentionally or recklessly damage or destroy any property of the home owners, other occupants or their guests,

(e)  to ensure that the times the operator or a representative of the operator is available to be contacted by the home owners are reasonable, having regard to all the circumstances, including the utilities supplied by the operator to residential sites,

(f)  to the extent that it is within the operator’s control, to ensure the continuity of supply of utilities to residential sites occupied by home owners,

(g)  to take reasonable steps to keep the community’s common areas reasonably free of weeds and vermin,

(h)  to have in place emergency evacuation procedures and take reasonable steps to ensure that all residents are aware of these procedures,

(i)  to pay all rates, taxes and other charges payable by the owner or operator of the community,

(j)  to comply with all statutory obligations relating to the community,

(k)  to ensure a residential site is in a reasonable condition, and fit for habitation, at the commencement of a site agreement for the site,

(l)  otherwise, to comply with the site agreements and the community rules.

(2)  With regard to the operator’s obligation to maintain the community’s common areas (in subsection (1)(c))—

(a)  any necessary work must be carried out as soon as is reasonably practicable and in a way that minimises disruption to residents, and

(b)  the work is to be carried out at an appropriate standard having regard to the age and prospective life of the community and to the level of fees and charges payable by residents, and

(c)  if there is a failure to carry out the work at all or to an appropriate standard, the Tribunal may, on application by a home owner, make any of the following orders in respect of the failure—

(i)  an order requiring work of a specified kind to be carried out,

(ii)  an order that the operator pay compensation to the home owner and any other home owners,

(iii)  any ancillary order that the Tribunal, in the circumstances, thinks appropriate.

  1. There do not appear to be any obligations in relation to the operator being responsible for the maintenance of the applicant’s home contained in the RLLC.

  2. The Tribunal has also considered the effect of the sale of the community from the previous owner being Ingenia Lifestyle to the current owner Hometown Australia Chain Valley Bay Pty Ltd, and whether there is any obligation on the current owner to conduct repairs to the applicant’s home as a result. In this regard section 52 of the RLLC says relevantly:

52   Change of operator

(1)  If another person becomes the operator of a community, the benefits and obligations under existing site agreements pass from the old operator to the new operator.

  1. Section 52 of the RLLC states that it is the “benefits and obligations under existing site agreements” that pass from the old operator to the new operator. The Tribunal does not consider that the obligation to conduct repairs to the applicant’s home by the operator is a matter which arises by virtue of any provision contained in the site agreement.

  2. It may be that the obligation to repair was contained within a sales agreement between the applicant and the previous operator and or the builder of the home. Those agreements are not in evidence before the Tribunal. That agreement is one that is separate to the site agreement between the parties.

  3. It may also be that the party that undertook the initial repair works to the home, AusConstruct, warrant those works. However, such a warranty is not in evidence before the Tribunal.

  4. It is suggested that the applicant obtain her own advice about any further action(s) that may be available to her.

  5. The applicant bares the onus of proving her case on the balance of probabilities and with evidence. On balance it appears that the applicant cannot produce sufficient evidence on the balance of probabilities to show that there is some obligation incumbent on the operator which would require them to be liable for further repairs to be conducted on her home.

  6. As the applicant is unable to discharge this onus and for the reasons outlined above the matter is dismissed.

**********

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

Amendments

12 September 2023 - Formatting amendments.

Decision last updated: 12 September 2023

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

0

Statutory Material Cited

2