Bell v Churches of Christ Care [2017] QCAT 360

CITATION: Bell v Churches of Christ Care [2017] QCAT 360 PARTIES: Joyce Bell (Applicant) v Churches of Christ Care (Respondent) APPLICATION NUMBER: OCL018-17 MATTER TYPE: Other civil dispute matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Steven Holzberger DELIVERED ON: 25 October 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. The application is dismissed. CATCHWORDS: REAL PROPERTY – RETIREMENT VILLAGES – exit entitlements – where applicant seeks orders that a refurbishment required by a lease be carried out – where parties have not taken part in a mediation process – whether the Tribunal has jurisdiction to hear the application – where the exit entitlement remains unpaid – whether the applicant can apply to the tribunal Retirement Villages Act 1999 (Qld), s 58(2), s 60(2), s 167, s 169, s 170, s 171, s 191 APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). -- 1 of 3 -- 2 REASONS FOR DECISION [1] Joyce Bell leased premises at St James Retirement Village until, according to the submissions made on behalf of the respondent, Churches of Christ Care (CCC), she vacated on 14 October 2016.1 [2] To date, her exit entitlement has not been paid. [3] As I understand it, Mrs Bell, who is represented by her attorney, Christopher Bell, is of the view that the reinstatement costs payable by her on exit are inflated and accordingly her exit entitlement is diminished because CCC failed to carry out at its expense a refurbishment of the property required by the lease. [4] On 8 March 2017, Mrs Bell applied to the Tribunal for orders that: a) CCC carry out the overdue refurbishment; b) The Refurbishment Deduction Scale commence on completion of the refurbishment; c) A valuation be carried out after refurbishment; d) The sale process be commenced; and e) Mrs Bell be reimbursed her living expenses incurred as a result of delays in the process. [5] On 19 May 2017, the Tribunal directed that jurisdiction of the Tribunal to hear and determine that application be considered on the papers. CCC filed submissions in relation to the jurisdiction point on 15 May 2017 and 29 June 2017. Submissions on behalf of Mrs Bell were provided on 3 May 2017. [6] So far as the application relates to the alleged breach of lease in failing to carry out a refurbishment, application may only be made to the Tribunal after a mediation process has not been undertaken.2 [7] Mrs Bell does not say that this pre-condition has been has been satisfied. CCC say that it has not.3 [8] Mrs Bell refers the Tribunal to s 191(1) of the Retirement Villages Act 1999 (Qld) (RV Act), which provides the Tribunal may make orders it considers just to resolve a dispute. That power is only enlivened if application can be made to the Tribunal. That is not the case here, because the mediation process has not been undertaken. 1 Respondent’s submissions dated 28 June 2017, [13]. 2 Retirement Villages Act 1999 (Qld), s 167. 3 Respondent’s submissions date 28 June 2017, [6]. -- 2 of 3 -- 3 [9] The last four orders relate to the determination and payment of Mrs Bell’s exit entitlement. [10] Mrs Bell submits that the application can be made under s 169, s 170 or s 171 of the RV Act. [11] Section 169 provides that a resident has a right to apply to the Tribunal if the resident’s right to reside in a retirement village is threatened to be removed or restricted. That is not the case here. It is common ground that the lease has been terminated and that Mrs Bell has vacated the premises. [12] Section 170 permits a resident to apply to set aside a resident’s contract if the resident is given false and misleading documents by a scheme operator and the resident is materially prejudiced as a result. The exit entitlement statement, is said by Ms Bell, to be a false and misleading document. Even if I accept that proposition, there is no utility in an application to set aside a resident’s contract that has already been terminated. [13] Section 171 of the RV Act permits a resident to apply to the Tribunal for payment of an exit entitlement if the scheme operator fails to comply with s 58(2) and s 60(2) of the RV Act and the resident is materially prejudiced by that failure. [14] It is submitted that Mrs Bell is materially prejudiced as she is under financial stress as a result of ongoing living expenses.4 [15] Mrs Bell’s submissions do not particularise any breach of s 58(2) by CCC. In respect of CCC’s obligation under s 60(2), it is submitted that CCC cannot obtain a valuation until the refurbishment work under the lease is completed.5 [16] CCC submits that it is not in breach of its obligations under either s 58(2) or s 60(2). CCC says it is Mrs Bell who is delaying the process through her lack of response. I am not satisfied that CCC is in breach of either s 58(2) or s 60(2). Accordingly, no application can be made by Mrs Bell under s 171 of the RV Act. [17] In those circumstances, Mrs Bell does not have a right to apply to the Tribunal for any of the orders sought. [18] The application is dismissed. 4 Applicant’s submissions, p 4. 5 Applicant’s submissions, p 5. -- 3 of 3 --