MURPHY and ORS v OVERTON INVESTMENTS PTY LTD AND ANOR [1998] NSWCA 149

MURPHY v OVERTON INVESTMENTS PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, POWELL JJA and FITZGERALD AJA 2 July 1998, 3 September 1998

[1998] NSWCA 149

CODES of practice of retirement village: legal effect of Codes; imposition of restrictions on owner/manager; rights of residents; interaction of Codes with Fair Trading Act 1987; power and jurisdiction of Residential Tenancies Tribunal

Priestley JA I agree with Fitzgerald AJA. Powell JA I agree with Fitzgerald AJA.

Fitzgerald AJA This expedited appeal from a judgment in the Equity Division relates to part of a dispute between most of the residents of the Heritage Retirement Village at Padstow Heights and the owner and manager of the village, Overton Investments Pty Ltd. The village consists of 124 units, and more than 100 of the residents are appellants. Each of the Director-General of the Department of Fair Trading and the Tenancy Commissioner is a party to this appeal and one or more other proceedings involving the appellant-residents and Overton. The appeal involves a challenge by the appellant-residents to the answers given to two preliminary questions by a Judge in the Equity Division on 23 December 1997.

Question 1

The first question, which the Equity Division answered in the negative, asked whether, subject to any injunction pursuant to s66 of the Fair Trading Act 1987, any undertaking pursuant to s76 of that Act, or any order pursuant to s78 of that Act, Overton is precluded from recovering from the appellant-residents " contributions to Outgoings and Outgoings of Apartments for 1993/94 and succeeding years otherwise payable under their respective leases... over and above the items and amounts of the budget approved by the residents of the Village ('the Village Residents') for 1992/93, by virtue of: