Estate of Bovaird v Milstern Retirement Services Pty Ltd [2022] NSWCATAP 75

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Estate of Bovaird v Milstern Retirement Services Pty Ltd [2022] NSWCATAP 75 Hearing dates: 14 October 2021 Date of orders: 18 March 2022 Decision date: 18 March 2022 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President M Harrowell, Deputy President Decision: (1) Both appeals dismissed. (2) If either or both of the Respondents seek costs of the appeal they must file and serve submissions in support of such applications within 14 days of today's date. (3) Within 14 days thereafter, the Appellant may file and serve submissions in response to the Respondent's submissions concerning costs of the appeal. (4) The submissions of the parties should include a submission as to whether the Tribunal may dispense with a hearing on costs and determine costs of the appeal on the papers. Catchwords: APPEAL-contract and lease under Retirement Villages Act- claim for proceeds of sale in reduction of recurrent charges- application out of time-whether time to be extended-whether a lessee had rights notwithstanding she never occupied the premises- whether lessee a Qualified Person-meaning of former occupant and of permanently vacated- calculation of recurrent charges. Legislation Cited: Civil and Administrative Tribunal Rules 2014 (NSW) Limitation Act 1969, (NSW) Retirement Villages Act 1999 (NSW) Cases Cited: Armee v Brealey [2017] NSWCATAP 141 Bovaird v Frost [2009] NSWSC 337 Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583 (1985) 62 ALR 429; (1985) 62 62 ALR 429 Category: Principal judgment Parties: In Appeal 2021/00056129: Estate of the Late Monica Catherine Bovaird (Executor – Leon Lewis Macgillivray Bovaird) (Appellant) Milstern Retirement Services Pty Ltd (First Respondent)