OVERTON INVESTMENTS PTY LTD v MURPHY & ORS [2001] NSWCA 183

New South Wales Court of Appeal

CITATION : OVERTON INVESTMENTS PTY LTD v MURPHY & ORS [2001] NSWCA 183 FILE NUMBER(S) : CA 40367/99 HEARING DATE(S) : 26 and 27 February 2001 JUDGMENT DATE : 21 June 2001

PARTIES : OVERTON INVESTMENTS PTY LTD v John MURPHY & 111 ORS JUDGMENT OF : Mason P at 1; Sheller JA at 96; Beazley JA at 97

LOWER COURT JURISDICTION : Supreme Court LOWER COURT ED 1181/97 FILE NUMBER(S) : LOWER COURT Windeyer J JUDICIAL OFFICER :

COUNSEL : Appellant: J C Campbell QC/ A J McInerney Respondents: G A Moore SOLICITORS : Appellant: Gadens Lawyers Respondents: Wendy Fisher, The Aged Care Rights Service CATCHWORDS : Retirement village - Retirement Villages Act 1995 - lessor sues to recover share of outgoings - cross claim - referee determines most issues - judgment entered despite outstanding defences raising claims of misleading and deceptive conduct - intention that issue of misleading and deceptive conduct should be litigated in representative proceedings commenced by residents in Federal Court - lessees acquiesce in proposed procedure - lessees bound by conduct of counsel (ND) DECISION : Appeal dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40367/99 ED 1181/97 MASON P SHELLER JA BEAZLEY JA

Thursday 21 June 2001 OVERTON INVESTMENTS PTY LTD v JOHN MURPHY & ORS

JUDGMENT

1 MASON P: The appellant, Overton Investments Pty Ltd (Overton) developed the Heritage Retirement Village at Padstow. At all material times, and until June 2000, it was the owner and operator of the Village. 2 The respondents are most of the residents of the Village, occupying units under individual 99 year leases. 3 A dispute concerning recoupment of outgoings has spiralled out of control and hardened into destructive siege warfare on several fronts (only some of which are referred to below). 4 For several years Overton's position has been that the residents' leases obliged them to pay a proportion of actual outgoings. The residents disputed Overton's primary contention that the rights of the parties depended exclusively on the contractual arrangements between them. There have also been prolonged disagreements as to quantum. There was a partial rent strike, with the residents withholding portion of the outgoings claimed. 5 On 10 January 1997 Overton started proceedings in the Local Court against 84 residents, seeking to recover the arrears of outgoings it then claimed.