Boele v Rinbac Pty Ltd [2014] NSWDC 111

District Court New South Wales

Medium Neutral Citation: Boele v Rinbac Pty Ltd [2014] NSWDC 111 Decision date: 21 March 2014 Before: Cogswell SC DCJ Decision: (1) Appeal disallowed and decision of Consumer, Trader and Tenancy Tribunal affirmed. (2) Order the plaintiff to pay the defendant's costs as agreed or assesed. Catchwords: CIVIL LAW - Appeal - decision by Consumer, Trader and Tenancy Tribunal to terminate a lease - retirement village unit – property became strata titled - retirement village went into liquidation - 2 step inquiry – whether Tribunal decided a "question with respect to a matter of law" - Tribunal's decision was not tainted by error - consideration of "circumstance of the case" under s 134(3)(a) of the Retirement Villages Act 1999 (NSW). Legislation Cited: Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) ss 28, 67, 134. Retirement Villages Act 1999 (NSW) ss 11, 112, 113. Uniform Civil Procedure Rules 2005 (NSW) r 42.1. Cases Cited: Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390. Category: Principal judgment Parties: Pieter Boele (plaintiff) Rinbac Pty Limited (defendant) Representation: Counsel: JL Glissan QC, DH Nagle (plaintiff) G Lucarelli (defendant) File Number(s): DC 2013/00276281

Judgment

Introduction 1In 1992 a man and his mother entered into a lease for a unit in a retirement village. The man paid nearly $150,000 to a trust company. About five years later the property became strata titled. The lease was not relevantly varied. A retirement village was operating at the time that the man's mother moved in and it comprised 31 strata units. Unfortunately, the retirement village went into liquidation and was deregistered. No retirement village has been conducted at the property since 2005. The retirement village operator went into liquidation, a mortgagee took possession and sold all of the units. A company purchased the unit over which the man had his lease. His lease was for 99 years expiring in 2091. 2The company has taken proceedings to terminate the man's lease. The lease was terminated by the Consumer, Trader and Tenancy Tribunal and the man has appealed to this Court. The man's name is Pieter Boele and the company which now owns the unit is Rinbac Pty Ltd. Mr Boele is the plaintiff in this Court because he has appealed from the Tribunal's decision. Rinbac Pty Ltd is the defendant in this Court.