ALBERT WILSON HOWES & ORS v DOBSON DEVELOPMENTS PTY LTD [2000] NSWCA 336

New South Wales Court of Appeal

CITATION : ALBERT WILSON HOWES & ORS v DOBSON DEVELOPMENTS PTY LTD [2000] NSWCA 336 FILE NUMBER(S) : CA 40238/00 HEARING DATE(S) : 17 November 2000 JUDGMENT DATE : 17 November 2000

PARTIES : ALBERT WILSON HOWES & 15 ORS v DOBSON DEVELOPMENTS PTY LTD JUDGMENT OF : Mason P at 1; Powell JA at 18

LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT SC 11728/99 FILE NUMBER(S) : LOWER COURT Master Malpass JUDICIAL OFFICER :

COUNSEL : Appellants: M J Slattery QC/J A Needham Respondent: G K Downes QC/M Green SOLICITORS : Appellants: Legal Aid Commission of NSW Respondent: Gregory J Halpin

DECISION : See pars 14,15,16,17 of Judgment

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40238/00

MASON P POWELL JA

Friday 17 November 2000

Albert Wilson HOWES & 15 Ors v DOBSON DEVELOPMENTS PTY LIMITED JUDGMENT

1 MASON P: On 21 July 1999 proceedings were commenced by summons in the Common Law Division by Dobson Developments Pty Ltd (Dobson) That company sought to enforce rights said to stem from licence agreements entered into by a number of residents of what I shall describe as a retirement village, without pre-empting any issues that may relate to that description. A dispute had arisen between Dobson and the residents about maintenance fees and in order enforce its rights as asserted, Dobson had purported to terminate the residents' licences. The Common Law proceedings in effect sought to enforce termination rights and other rights. 2 The residents countered with a cross-claim filed in October 1999 in which they, among other things, asserted rights under the Retirement Villages Act 1989. They sought declarations that they were residents of a retirement village within the meaning of s 3 of that Act, and that Dobson was an administering authority within the meaning of s 3 of that Act. Declarations were also sought restraining the issue of further notices purporting to terminate the licence agreements without an order for possession being issued by the Residential Tribunal. In essence, a question arose as to the jurisdiction of the Supreme Court to grant some or all of the relief sought by Dobson. 3 On 4 November 1999 Hulme J ordered that certain agreed issues be separately determined. They were determined by Master Malpass who gave judgment on 9 March 2000. The Master effectively determined those issues in favour of Dobson. Such determination involved conclusions of fact and law. The residents sought leave to appeal and that leave was granted on 10 August 2000. The Court ordered expedition of the appeal. 4 At a callover on 24 August 2000 the residents filed an amended notice of appeal. That amended notice of appeal continued to challenge the conclusions of Master Malpass but it also sought to assert rights stemming from the Retirement Villages Act 1999 which had relevantly commenced operation on 1 July 2000. That Act repealed the Retirement Villages Act 1989 although the transitional aspects of that repeal were and are a very live issue between the parties. 5 The respondent's solicitors promptly complained that the notice of appeal as filed was outside the leave granted, and on 12 September 2000 the respondent filed a notice of motion seeking to strike out the offending portions of the notice of appeal. Subsequently, and rather belatedly, the appellants filed a notice seeking leave to amend their notice of appeal and other relief. They had in the meantime filed submissions which have been subsequently amended. It is now quite clear that the appellants wish to argue in the appeal, in the alternative to challenging the Master's decision on the basis that he decided the matter, a challenge based upon the argument that the new Act now governs the relationship between the parties. 6 The expedited appeal has been fixed for hearing on 4 December. 7 In my view the respondent was perfectly entitled to move to strike out the notice of appeal as incompetent. It was beyond the leave granted, not just in a formal way but in substance. The matters it raised, relying upon the new Act, were matters which could have been and should have been put before the Court when leave was sought on 10 August. Nevertheless, it is in the interests of all parties to know what is the legal regime which governs their existing and perhaps future rights. 8 The respondent has indicated that it will submit firmly that the new Act has no bearing on the rights of the parties because of the terms of cl 8 of the Fourth Schedule of that Act. That is an issue which will need to be determined and should be determined in the course of hearing the appeal. If it is determined in the respondent's favour then the rights of the parties will have to be determined under the old Act and the challenge to the Master's decision will be confined to the issues litigated before him and the evidence before him, subject only to the exceptional possibility that further evidence on those old issues would be admitted on appeal. 9 If the appellants are right and the new Act has some bearing on the rights of the parties and the determination of the present litigation then that may mean that it is unnecessary for the Court to determine the correctness of what the Master decided. In any event, it would have a bearing on the future disposition of the proceedings, bearing in mind that the litigation of the separate issues before the Master have addressed only some of the matters of dispute between the parties. 10 In my view it is in the interests of justice that the appeal record be amended so that the alternative arguments sought to be raised by the appellants based on the new Act can at least be considered. The Court would have power to refuse that leave in its discretion, see Holcombe v Coulton (1988) 17 NSWLR 71 at 78. However, if the leave is granted to amend the grounds of appeal, then the appeal (being by way of rehearing) would address the rights and obligations of the parties in accordance with the law as it stands at the time of the appeal. Whether that law is to be found in the 1998 Act or the 1999 Act is, as I have indicated, a matter that remains at issue. 11 The appellants have filed an affidavit of their solicitor which seeks to put before this Court evidence in a fairly short compass that would be relevant, so the appellants say, to the determination of the wider issues arising under the 1999 Act. To date, the respondent has not filed any evidence in reply. The respondent has, however, indicated that it will contend that quite a different set of factual issues will arise if the new Act governs the rights of the parties, and that it will contend that it is not in the interests of justice that those factual issues be litigated in this Court. 12 The appellants, on the other hand, argue that all that needs to be determined factually for the resolution of the appeal is that the facts and circumstances as they prevailed at the commencement of the new Act on 1 July 2000 have continued. If that is so then perhaps they do not even need evidence, they have the benefit of the presumption of continuance. That is a matter for the Court hearing the appeal (as amended) to determine whether it will admit the fresh evidence and if it does, what steps it will take in light of the law as it determines, and in light of any submissions or evidence advanced by the respondent pertaining to the question as to how facts relevant to the impact of the new legislation should be determined. In Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73 at 107-8, Dixon J said: If by a retrospective change in the law the rights and obligations of the parties come to depend upon facts which have not been ascertained, the Court of Appeal takes the necessary steps to have the dispute between the parties decided according to the law presently in force, and it may set aside the order appealed against and remit the cause to be re-heard so that the rights of the parties may be determined as at the date of re-hearing. 13 That option will be open to the Court in light of the submissions of the parties at the hearing. 14 In my view, the Court should dismiss the respondent's notice of motion and in the appellants' notice of motion make the orders sought in para 2 thereof. The balance of the appellants' notice of motion should be stood over to the hearing of the appeal. 15 I would order that the costs of each notice of motion to date be paid by the appellants in the appeal. If it is necessary to do so, I would direct that that costs order not be enforced pending the determination of the appeal. I would assume that that will not be necessary. 16 The appellants should file the amended notice of appeal forthwith. 17 If the respondent wishes to file evidence relevant to the issues in the appeal, including the issue as to how outstanding disputes as to fact should be determined, then I would direct the respondent to file and serve such evidence on or before Monday 27 November. I would grant liberty to apply. 18 POWELL JA: I agree. ********