Dobson Developments Pty Limited v Howes & Ors [1999] NSWSC 1086

New South Wales Supreme Court CITATION : Dobson Developments Pty Limited v Howes & Ors [1999] NSWSC 1086 CURRENT JURISDICTION : Supreme Court FILE NUMBER(S) : 11728/99 HEARING DATE(S) : 15 September 1999 4 November 1999 JUDGMENT DATE : 4 November 1999

PARTIES : Plaintiff: Dobson Developments Pty Limited Defendant: Albert Wilson Howes and Ors JUDGMENT OF : Hulme J at 1

COUNSEL : Plaintiff: Mr M. Green Defendants: Ms J.A. Needham SOLICITORS : Plaintiff: Gregory J Halpin Defendants: Legal Aid Commission of New South Wales CATCHWORDS : Interlocutory DECISION : Order for expedition and determination of separate questions

- 2 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

NO: 11728 of 1999

Thursday, 4 November 1999

HULME J DOBSON DEVELOPMENTS PTY LIMITED v Albert Wilson HOWES AND ORS JUDGMENT

HIS HONOUR:

1 This matter came before me as duty judge on 15 September last. To a very large extent the rights of the parties depend upon the proper construction of the Retirement Villages Act 1989 (NSW) and it was agreed that questions should be formulated defining the issues which arose as to that construction and that these should be determined in advance of other issues. The matter was adjourned to enable the parties to formulate those questions with precision. 2 Without any attempt to pre-empt the decisions on the issues which arise, the background to the litigation is as follows. The Plaintiff is the owner of a number of units in a retirement village. The units are occupied by the Defendants. The Plaintiff claims that it is entitled to more by way of rent or occupation fee for the use of the units than it has been receiving. The Defendants dispute this and have declined to pay. In consequence, the Plaintiff has purported to terminate the Defendants' right to remain in the units they have been occupying. It is their rights in these respects that the parties wish to resolve. Also involved is whether this Court has jurisdiction to determine all matters in issue or whether proceedings properly lie in the Residential Tribunal. 3 The Defendants are elderly, varying in age between about 70 and 93 years. Some are in ill-health. Prior to the Plaintiff's acquisition of its units, its predecessor in title to them was engaged in somewhat similar litigation with the Defendants although there is no suggestion that that earlier litigation provides an answer to the present dispute. The Court may, I think, take judicial notice of the strain to which the Defendants have been and are being subjected to by this and the previous litigation and it seems to me clearly a case where an order for expedition should be made. 4 The parties' estimate is that with the benefit of the written submissions which they propose to file, the hearing on the separate questions should take no more than 3 hours. 5 It is for these reasons that I have thought it appropriate to make the more significant of the orders made this morning and embodied in the Short Minutes of Order initialled by me.