NSW Caselaw
New South Wales Supreme Court
CITATION : WILLOUGHBY RETIREMENT COMMUNITY ASSOCIATION v FREY [2008] NSWSC 870
HEARING DATE(S) : 10 December 2007; 7 and 14 March 2008
JUDGMENT DATE : 26 August 2008
JURISDICTION : Equity
JUDGMENT OF : Hall J at 1
DECISION : Judgment to be entered for the plaintiff. Cross-claim to be dismissed. Minutes of orders to be drafted to give effect to judgment. Damages in accordance with MFI 2 subject to leave to apply with respect thereto.
CATCHWORDS : CONTRACT – Resident Agreement for occupancy of aged care premises – requirement to disclose assets – concessional status granted on basis of limited assts – inaccurate information – failure to disclose title/ownership to home unit – contractual provision that concessional status no longer applies if inaccurate information provided – - STATUTORY INTERPRETATION – prospective or retrospective operation of amendments to the Aged Care Act 1997 (Cth) – changes to the aged care system by the Aged Care Amendment (Transitional Care and Assets Testing) Act 1005 – determinations made by Secretary of Department of Veterans' Affairs pursuant to amendments granting concessional status after defendant entered into aged care facility– whether amendments operated retrospectively such that Secretary's determinations applied from date of entry – whether amendments override existing contractual rights – no retrospectivity – Secretary's determinations did not disentitle the plaintiff to residents fees and interest on accommodation bond otherwise payable – calculation of damages re such contractual entitlements
LEGISLATION CITED : Aged Care Act 1997 Aged Care Amendment (Transitional Care and Assets Testing) Act 2005
Baker v Regina (2004) 223 CLR 513 Ho v Professional Services Review Committee No 295 [2007] FCA 388 CASES CITED : Maxwell v Murphy (1957) 96 CLR 261 Regina v Kelly (Edward) [2000] QB 198 Wenham v Ella [1972] 172 CLR 454 Willoughby Retirement Community Association v Frey [2007] NSWSC 63
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