Bell v Yeronga Village Pty Ltd [2023] QCAT 75

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Reginald Bell v Yeronga Village Pty Ltd [2023] QCAT 75 PARTIES: REGINALD JOHN BELL (applicant) v YERONGA VILLAGE PTY LTD AS TRUSTEE FOR THE YV UNIT TRUST T/AS THE VILLAGE RETIREMENT GROUP (respondent) APPLICATION NO/S: OCL102-21 MATTER TYPE: Other civil dispute matters DELIVERED ON: 28 February 2023 HEARING DATE: 14 November 2022 HEARD AT: Brisbane DECISION OF: Member Poteri ORDERS: The application(s) made by Reginald John Bell to set aside the contract between Reginald John Bell and Yeronga Village Pty Ltd as Trustee for the YV Unit Trust to purchase an interest in Apartment 5206 and for compensation to be paid to Reginald John Bell are dismissed. CATCHWORDS: General Contract Matters under the Retirement Villages Act 1999 (the Act) – Where a party has entered into a contract to purchase an interest in a retirement village – where the party alleges misleading or deceptive conduct on the part of scheme operator pursuant to s 86 of the Act – where the party is seeking to set aside the contract pursuant to s 170 of the Act and claim compensation from the scheme operator pursuant to s 193 of the Act – Relevance of the provisions of the Act after the party has transferred the interest in the retirement village prior to the hearing and an order being made by the Tribunal. Retirement Villages Act 1999 (Qld), s 3, s 9, s 10, s 86, s 170, s 193 Maxwell v Murphy 96 CLR 261 Chancellor Park Retirement Village Pty Ltd v Retirement Villages Tribunal & Ors [2004] Qd R 346 Bell v Churches of Christ Care [2017] QCAT 360 -- 1 of 8 -- 2 APPEARANCES & REPRESENTATION: Applicant: Self Represented Respondent: Self Represented REASONS FOR DECISION [1] This matter was heard before me in person on 14 November 2022. At the commencement of the proceedings, the Applicant, Reginald John Bell (Bell), appeared with Mr BA Hall of Counsel. Bell made an application to be legally represented. The Respondent, Yeronga Village Pty Ltd (Yeronga), was represented by Justin Harrison (Harrison), who is the managing director of Yeronga. Harrison objected to Bell being legally represented so I decided to allow Counsel to be seated with Bell to provide assistance to Bell. I informed Harrison that if he had any questions or concerns he could seek guidance from me. I also advised him that he could seek an adjournment at any stage to obtain legal advice from his lawyer. [2] At the conclusion of the hearing, I did allow Counsel to make some final submissions which were also outlined in written submissions. Further I allowed time after the hearing for Harrison to file written submissions on behalf of Yeronga in response to Bell’s closing submissions. [3] The parties did not raise any jurisdiction or legal issues at the commencement of the hearing, so I proceeded to hear the matter. At the hearing the evidence mainly centred on the issue of whether a misleading or deceptive representation had been made by Yeronga to Bell to induce Bell to enter into a contract. After further considering the evidence and noting that Bell is no longer a resident of the Village, I made an order for the parties to file further submissions. [4] I propose to briefly outline the background to these proceedings as it is my view that there is a preliminary legal issue to resolve prior to analysing the evidence in detail. BACKGROUND [5] Yeronga is the operator of a retirement village situated at 15 Cansdale Street, Yeronga (Village) in Brisbane. The Village operates pursuant to the provisions of the Retirement Villages Act 1999 (Qld) (‘the Act’). [6] Bell first contacted the Village in August 2019 and discussed the prospect of purchasing a property interest in Brisbane with Kathryn Gilhooley (Gilhooley), who was at that time the sales manager for the Village. Bell advised Gilhooley that he was a retired lawyer, who had sold his property in Melbourne and expressed an interest in viewing the Village. [7] Bell subsequently visited the Village on 30 September 2019 and 2 October 2019. There were discussions and correspondence between the parties. Subsequently contract documents were sent to Bell and Bell entered into a contract to purchase (Purchase Contract) an interest (Interest), being Apartment 5206, in the Village. The Purchase Contract was completed on 15 November 2019. [8] Bell gave evidence that he is a fit 70-year-old and when he was inspecting the Village he was assured by Gilhooley that the average age of residents was about 70 years of age. Gilhooley disputes this assurance was given and says that she advised Bell that -- 2 of 8 -- 3 the residents were about his age. Gilhooley says that when the conversation took place, she was not aware of Bell’s age. Bell says that this is the false and misleading conduct that induced him into purchasing the Interest. Bell took the opportunity to inspect the Village on 2 occasions. [9] The discussion took place in the presence of Miranda Jane Jule Douglas-Crane (Crane), who was Bell’s partner at the time. Crane gave evidence and referred to her affidavit sworn on 4 October 2021. [10] Bell alleges that the average age of residents in the Village is much higher than 70 being closer to 80. [11] Bell says that the false and misleading information that induced him to purchase the Interest was the oral information given to him by Gilhooley in the presence of Crane. Bell accepts that there are no documents or other material supplied by Yeronga that support his claim. [12] I note that pursuant to clause 3(e) of the Purchase Contract (part of Bell’s application to the Tribunal dated 23 August 2021 in file OCL 052/21) states: You acknowledge and agree that: (e) You have not received or relied on any representation or promises that are not set out in the documents referred to in clause 3(a) and any details of changes given to you under clause 3(b); and” [13] Moreover, Bell acknowledged that he did not make any request for the Purchase Contract to be conditional upon Yeronga providing confirmation about average age of residents in the Village. [14] Bell alleges that he made a complaint to Gilhooley about the age of residents in or about March 2020. Gilhooley denies that the relevant conversation was in the form of a complaint but more in the way of a passing conversation. [15] The Purchase Contract is a residence contract as defined in s10 of the Act. [16] Yeronga says that Bell made no formal complaint about the Village until in or about the time Bell advised Yeronga that he wished to sell the Interest in the latter part of 2021. [17] Yeronga alleges that the main motivating factor for Bell purchasing the Interest was his desire to be close to his special needs son as soon as possible. Yeronga also allege that this was also the reason why Bell was selling the Interest. Yeronga says that Bell’s son was moving from Brisbane. Bell disputes these allegations. APPLICATIONS [18] There is a Tribunal file OCL 052 – 21 (Application 1) which relates to an application filed by Bell on 23 August 2021. In Application 1, Bell issued a Dispute Notice for Referral. Bell also raises the issue of the false and misleading information made to him in October 2019 – page 6 Part E of the application. In Application 1, Bell is also seeking orders to have the Purchase Contract set aside and for compensation to be paid to him. On the addendum to Application 1, Part E, Bell also raises the issues in regard to the marketing of the Interest and the sale price. This file did not proceed past the compulsory conference. -- 3 of 8 -- 4 [19] On 14 November 2022 I was hearing the parties in respect to Bell’s application to the Tribunal - OCL 102 - 21 - filed on 15 November 2021 (Application 2). In Application 2 Bell is seeking to have the Purchase Contract set aside pursuant to s170(2) of the Act and for Yeronga to pay compensation pursuant to s193(2) of the Act. LEGISLATION [20] The relevant provisions of the ACT are set out: 3 Objects (1) The main objects of this Act are— (a) to promote consumer protection and fair trading practices in operating retirement villages and in supplying services to residents by— (i) declaring particular rights and obligations of residents and scheme operators; and (ii) facilitating the disclosure of information to prospective residents of a retirement village to ensure the rights and obligations of the residents and scheme operator may be easily understood; and (b) to encourage the continued growth and viability of the retirement village industry in the State. (2) The following are also objects of this Act— (a) to encourage the adoption of best practice standards by the retirement village industry; (b) to provide a clear regulatory framework to ensure certainty for the retirement village industry in planning for future expansion; (c) to facilitate participation by residents, who want to be involved, in the affairs of retirement villages; (d) to provide for processes for resolving disputes between residents and scheme operators. 9 Who is a resident A resident of a retirement village is a person who has a right to reside in the retirement village and a right to receive 1 or more services in relation to the retirement village under a residence contract. 10 What is a residence contract (1) A residence contract is 1 or more written contracts, other than an excluded contract, about residence in a retirement village entered into between a person and the scheme operator. (2) A residence contract includes any other contract (an ancillary contract) between the person and the scheme operator if the ancillary contract is dependent on, or arises out of, the making of the residence contract or another ancillary contract. (3) Without limiting the interests that a residence contract may be based on, a residence contract may be based on a freehold interest in an accommodation unit. -- 4 of 8 -- 5 (4) To be a residence contract, a contract must— (a) either— (i) purport to give a person, or give rise to a person having, an exclusive right to reside in an accommodation unit in the retirement village; or (ii) provide for, or give rise to, obligations on a person in relation to the person’s or someone else’s residence in the retirement village; and (b) purport to give a person, or give rise to a person having, a right in common with other residents in the retirement village, to use and enjoy the retirement village’s communal facilities; and (c) contain or incorporate— (i) a service agreement or an agreement to enter into a service agreement that includes a copy of the service agreement; and (ii) if the contract includes an ancillary agreement that is not signed contemporaneously with the contract, an agreement to enter into the ancillary agreement that includes a copy of the ancillary agreement; and (d) restrict the way in which, or the persons to whom— (i) the right to reside in the retirement village may be disposed of during the resident’s lifetime; or (ii) if the contract is based on a freehold interest in an accommodation unit—the resident’s freehold property may be disposed of during the resident’s lifetime. 86 Misleading or deceptive conduct (1) This section applies to a person who is— (a) a scheme operator; or (b) a representative of a scheme operator. (2) The person must not, in relation to the operation of a retirement village scheme, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. Example of conduct that is misleading or deceptive or is likely to mislead or deceive— Giving false or misleading information (orally or in writing) to— (a) the chief executive; or (b) a resident or prospective resident. Maximum penalty—200 penalty units. (3) In this section— representative, of a scheme operator, means— -- 5 of 8 -- 6 (a) an employee or agent of the scheme operator; and (b) if the scheme operator is a corporation—an executive officer of the scheme operator. 170 Resident may apply for order if scheme operator contravenes particular provisions (1) This section applies if— (a) a scheme operator of a retirement village contravenes section 84 or 86; and (b) a resident of the retirement village is materially prejudiced by the contravention. (2) The resident may apply to the tribunal for an order to have the resident’s residence contract set aside. (3) Subsection (2) applies even if the resident was a prospective resident at the time of the contravention. 193 Tribunal orders under section 170 (1) This section applies if a resident applies for a tribunal order under section 170. (2) In setting a contract aside, the tribunal may make the orders it considers appropriate including, for example, the following— (a) an order that the scheme operator refund to the resident the ingoing contribution or another amount paid under the contract; (b) an order that the scheme operator compensate the resident for damages or loss caused by the contravention. CHRONOLOGY [21] Completion of Purchase Contract 15 November 2019 [22] Completion of Sale Contract 13 September 2021 [23] Filing of Application 1 23 August 2021 [24] Filing of Application 2 15 November 2021 CLAIM [25] To succeed in his claim Bell must show: (a) Yeronga engaged in conduct that was misleading or deceptive or is likely to mislead or deceive. That is, Yeronga contravened s 86 of the Act: and (b) As a resident of the Village Bell has been materially prejudiced by the contravention – s170(1)(b) of the Act. [26] Pursuant to s170(1)(c) of the Act, if a person can satisfy the requirements of ss170(1)(a) and (b) of the Act then the resident may apply to the Tribunal for an order to have the residence contract set aside. Satisfying both subsections are preconditions to a successful claim. This was decided in the matter of Chancellor Park Retirement Village Pty Ltd v Retirement Village Tribunal [2004] 1Qd R 346 where Chesterman J -- 6 of 8 -- 7 held that the jurisdiction of the Tribunal required, as a threshold determination, the pre-conditions stated in ss170 (1)(a) and (b) of the Act to be found to exist. [27] Even if Bell can demonstrate that Yeronga contravened s86 of the Act and he was materially prejudiced by the breach, there is another limitation in s170 of the Act. That is pursuant to s170(2) of the Act only a “resident” can apply to have the resident’s “residence contract” set aside. Therefore, the relief under s170(2) is only available to a resident who has a current resident’s residence contract. [28] Is Bell a “resident”? Resident is defined in s9 of the Act. That is a person who has a right to reside in a retirement village and a right to receive services. Bell ceased to be a resident of the Village on 13 September 2021. When Bell filed Application 2, he was not a resident and he had no interest in a residence contract. Therefore, Bell’s claim in Application 2 must fail. [29] Bell has submitted that the facts and circumstances are more complicated because Bell filed Application 1 in the Tribunal on 23 August 2021 while he was still a resident of the Village. Bell submits that it would be unfair to deny him relief. Even though Bell filed Application 1 whilst he was a resident and appears to have done very little in Application 1 in the Tribunal, it is my view that Bell’s claim in Application 1 should also fail. [30] The issue for determination for the Tribunal is what facts and circumstances exist at the time of the hearing and the making of the order. [31] Section 170(1)(c) of the Act refers to the ability of residents to apply to the Tribunal for an order to set aside the resident’s residence contract. Setting aside a contract refers to a contract that is currently on foot and the ability of the Tribunal to return the parties to their original position. The Purchase Contract was no longer on foot after 13 September 2021. Further, the interest that Bell once held in the Village has been transferred to another independent party. It is practically impossible to retrospectively set aside the Purchase Contract as this action may affect the rights of other parties. [32] Bell submits that I can set aside the contract retrospectively and courts have done this in the past. He also submits that this is the same as declaring the contract “void ab initio”. That is void from the start as if the contract never existed. The wording of s170 of the Act is very clear and precise. The Tribunal’s power is limited to the power conferred on it by the Act and other relevant legislation. The power of the Tribunal to make orders under s170(2) of the Act does not extend to setting aside residence contracts that are no longer on foot or to declare residence contracts void ab initio. [33] I further note that pursuant to s170(3) of the Act prospective residents can avail themselves of the relief outlined in s170 of the Act. Section 170 of the Act makes no mention of former residents or conferring rights retrospectively. For rights to apply retrospectively requires clear and unequivocal language to be set out in the relevant legislation. The principal case for this proposition is the matter of Maxwell v Murphy [1957] 96 CLR 261 where Dixon J stated at page 267: “The general rule of common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred…..” [34] I have perused the explanatory notes of the Retirement Villages Bill 1999 when the Bill was introduced into Parliament. The explanatory notes give no assistance or -- 7 of 8 -- 8 clarification and there is no reference to the remedies extending to former residents or for the provisions to operate retrospectively. [35] I note that the term “former resident” is used throughout the Act and specifically in respect to the relief available to former residents in s171 of the Act. Therefore, the legislation makes a clear distinction between a resident and a former resident. [36] I have also perused the objects of the Act which are contained in s3 of the Act. The objects refer to the promotion of consumer protection of residents. This is another small facet in supporting my view about the limitations of the relief available under s170 of the Act. [37] In the matter of Bell v Churches of Christ Care [2017] QCAT 360, Member Holzberger stated at 12 “…Even I accept that proposition, there is no utility in an application to set aside a resident’s contract that has already been terminated.” This supports my view. [38] I find that Bell was not a resident of the Village, and he did not have a residence contract with Yeronga at the time that I heard the matter and all other relevant times. Therefore, Bell cannot satisfy the requirements of s170 of the Act and Application 1 must fail. [39] I conclude that the Tribunal can only order the relief set out in s 170(2) of the Act if the applicant is a “resident”, as defined in s 9 of the Act, and the applicant has a current “residence contract”, as defined in s 10 of the Act, with a scheme operator. [40] Because Bell cannot satisfy the preconditions set out in s 170 of the Act in respect to Applications 1 and 2, it is not necessary for me to make any other findings regarding Village’s alleged contravention of s86 of the Act and whether Bell was materially prejudiced by such alleged contravention. [41] Accordingly, Bell’s Application 1 and Application 2 are dismissed. -- 8 of 8 --