Australia, June 11 -- New South Wales Land and Environment Court issued text of the following judgement on May 12:

1. BASTEN AJ: The six plaintiffs appeal from a judgment in the Local Court ordering each to pay the defendant, Coolah Tourist Park Pty Ltd, an amount for site fees for rights of occupancy of caravan sites in a tourist park. Although the magistrate (Brender LCM) found that there was no contractual relationship between the plaintiffs and the defendant, he concluded that the defendant, having taken over ownership and operation of the park from its former operator, Coolah Home Base Pty Ltd (CHB), was entitled to enforce the obligations to pay site fees against the residents under village contracts entered into between the residents and the former operator, pursuant to s 40(1) of the Retirement Villages Act 1999 (NSW).

2. The plaintiffs contended that s 40 provides for a village contract to be enforced "against" any operator for the time being of the village, but does not provide a reciprocal right of enforcement against residents. That is the primary issue raised on the appeal, and constitutes a question of law for the purposes of the Local Court Act 2007 (NSW), s 39(1).

3. In the course of his reasons, the magistrate rejected a claim by the defendant that the village contracts with the former operator had been novated in favour of the defendant. Further, the magistrate declined to deal with a claim based on "unjust enrichment", relied on by the defendant as a third basis of entitlement to recover the site fees. The defendant filed a notice of contention seeking to reagitate the issue of novation and assert its claim based on unjust enrichment.

Jurisdictional issues

Appeal jurisdiction

4. Section 39 of the Local Court Act confers a right of appeal to this Court on parties to proceedings before the Local Court sitting in its General Division who are dissatisfied with a judgment or order of the Court, "but only on a question of law". There is no doubt that the plaintiffs' appeal, which turns on a proper construction of the Retirement Villages Act, is an appeal only on a question of law. The defendant did not appeal, because it is not dissatisfied with the order made in the Local Court.

5. A notice of contention is permitted by the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 50.11, where a defendant wishes to have a judgment affirmed on grounds other than those relied on by the court below. However, three issues arise as to the scope of the jurisdiction of this Court to consider a matter raised by way of contention.

6. First, where the matter has been raised before the magistrate and rejected, the rejection may have been on a basis not limited to a question of law. Where the appellant is limited to relying on a question of law, it is unlikely that the Parliament intended that a defendant could seek to defend the decision below on broader grounds. The better view is that that course is not available, and the constraint imposed by s 39(1) should apply equally to a contention, absent a grant of leave pursuant to s 40(1), if that provision can be relied on by the party responding to the appeal. Whether it can seek to do so in circumstances where the appellant does not seek to rely upon that provision need not be addressed in this case because neither party sought such leave.

7. Secondly, if the contention relies on a ground not addressed by the magistrate it may require findings of fact not made or conceded below. Similar reasoning would suggest that this Court does not have jurisdiction to make additional findings of fact. Authority supporting these conclusions will be addressed below.

8. Thirdly, there is a general issue as to the nature of the appeal in this Court, which may affect the answers to the first two issues. It is convenient to commence with this issue, which will lead into the other issues.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/196b27769a3b39c2bed3c5e0)

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