Fitzgerald v Aveo Group Limited [2022] NSWCATCD 25

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Fitzgerald v Aveo Group Limited [2022] NSWCATCD 25 Hearing dates: 14 January 2022 Date of orders: 17 January 2022 Decision date: 15 January 2022 Jurisdiction: Consumer and Commercial Division Before: G K Burton SC, Senior Member Decision: 1. Order that the costs in respect of work on the deceased lessee's independent living unit to be deducted from exit entitlement are not to exceed $4,084.30, subject to any agreement between the parties on a contribution by the estate of the applicant to refurbishment costs for the purposes of re-sale or exit valuation. 2. Subject to orders 3 and 4, order that the respondent pay the applicant's costs of the proceedings on the ordinary basis as agreed or assessed. 3. Any party who seeks an alternative costs order to order 2 is to file and serve written submissions in respect of such alternative costs order (including if an oral hearing on costs is sought and, if so, why) on or before 1 February 2022. 4. Written submissions in reply to any written submissions under order 3 are to be filed and served on or before 15 February 2021. Catchwords: RETIREMENT VILLAGES – Operator obligations on capital maintenance and replacement – Effect of such obligations when lease of registered interest holder terminates by death – Interaction of such obligations with refurbishment for re-sale or exit valuation Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Retirement Villages Act 1999 (NSW) Cases Cited: Bonita v Shen [2016] NSWCATAP 159 Johnson t/as One Tree Constructions v Lukeman [2017] NSWCATAP 45 Latoudis v Casey (1990) 170 CLR 534 Oppidan Homes PL v Yang [2017] NSWCATAP 67 Oshlack v Richmond River Council (1998) 193 CLR 72 Owners SP 63341 v Malachite Holdings PL [2018] NSWCATAP 256 Thompson v Chapman [2016] NSWCATAP 6 Texts Cited: Nil Category: Principal judgment Parties: Michael Peter Fitzgerald as Executor of the Estate late Pamela Ann Fitzgerald (Applicant) Aveo Group Ltd (Respondent) Representation: Counsel: L Steer (Applicant) R Davis (Respondent)