Christine Leaves v Mountainview Retreat Retirement Village Pty Ltd [2014] NSWCATCD 76

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Christine Leaves v Mountainview Retreat Retirement Village Pty Ltd [2014] NSWCATCD 76 Hearing dates: 17 December 2013 and 3 March 2014 Decision date: 14 May 2014 Before: K Rosser, Senior Member Decision: Application dismissed. Catchwords: Village contract; deferred fee; deferred management fee; whether contract unjust. Legislation Cited: Civil and Administrative Tribunal Act (NSW) 2013 Consumer, Trader and Tenancy Tribunal Act (NSW) 2002 Retirement Villages Act (NSW) 1999 Contracts Review Act (NSW) 1980 Strata Schemes Management Act (NSW) 1996 Cases Cited: West v AGC (Advances) Ltd (1986) 5 NSWLR 610 (CA) Category: Principal judgment Parties: Christine Leaves (applicant) Mountainview Retreat Retirement Village Pty Ltd (respondent) File Number(s): RV 13/42210

reasons for decision

Application and background 1The applicant has been a resident in a self-care retirement village which is operated by the respondent since 2008. The units in the retirement village form part of a strata scheme and the applicant purchased her unit in the village from the previous residents. On 7 October 2008, the applicant entered into a Deed for the Provision of Services with the respondent (the Deed). The Deed constitutes a village contract for the purposes of Retirement Villages Act (NSW) 1999. 2Clause 26 of the Deed states that the sale of a unit in the village cannot be completed unless the purchaser executes a deed in the form of the current deed used in the village. Clause 27(b) of the Deed provides for the payment of a deferred fee on sale of the unit, equal to 2.5% per year of the sale price or market value, whichever is the greater, calculated from the time of purchase till the time of sale, for a maximum of twelve years. 3Clause 30 of the Deed provides for a Charge in favour of the operator to be registered on title, to secure payment of sums to which the operator is entitled, including the deferred fee. The applicant executed the Charge on 7 October 2008. The Charge was subsequently registered as an encumbrance on the certificate of title to the applicant's property. 4The applicant seeks orders under section 123 of the Retirement Villages Act declaring the whole Deed as well as the Charge to be void. Alternatively, according to the applicant's written submissions, she seeks an order voiding Clauses 26 and 27(b) of the Deed. The applicant's central dispute with the respondent in the context of this application is the requirement to pay the deferred fee on sale of her unit. 5The applicant also objects to the Medical Authority which she signed as a result of special condition 4(a)(ii) of the contract of sale. This Medical Authority allows the operator to obtain medical treatment for the owner if the owner is unable to obtain such treatment and to take steps to have the owner admitted to "an appropriate medical institution" if the owner "become incapable of caring adequately for himself [sic] in the Unit". 6In response to the application, the respondent argues that the procedural requirements of the Retirement Villages Act were complied with and that there is no substantive injustice in the application of the deferred fee.