Executors of the Estate of the Late Joan Beatrice Aubrey v Deepwater Retirement Village Pty Limited [2014] NSWCATCD 184

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Executors of the Estate of the Late Joan Beatrice Aubrey v Deepwater Retirement Village Pty Limited [2014] NSWCATCD 184 Decision date: 30 September 2014 Before: G Meadows, Senior Member Decision: 1The respondent is pay the applicant the sum of $23,042.80 immediately. 2If the applicant maintains its claim for costs, the applicant is to provide written submissions in that regard no later than 14 days after the date of these reasons. 3The respondent is to provide any written submissions in reply to the application for costs no later than 28 days after the date of these reasons. 4A decision in relation to costs will be made in chambers on the basis of any written submissions received in compliance with the orders above. Legislation Cited: Civil and Administrative Tribunal Act 2013 Retirement Villages Act 1999 Category: Principal judgment Parties: Keith Charles Aubrey and Diane Joan Melville and Vicki Margaret Hewett as executors of the Estate of the Late Joan Beatrice Aubrey (applicant) Deepwater Retirement Village Pty Limited (respondent) File Number(s): RV 13/53679 Publication restriction: Unrestricted

reasons for decision

APPLICATION 1The application was filed on 15 October 2013, seeking the following orders: (1)An order under s. 128(1)(e) of the Act that the operator pay to the resident by way of refund the sum of $12,724.80 deducted from the proceeds of sale of the residence by the operator; (2)An order that the operator pay to the resident its share of the residents costs of sale calculated in accordance with s.170(1) of the Act (3)An order under s. 128(1)(e) of the Act that the operator pay to the resident by way of refund the sum of $10,318.00 deducted from the proceeds of sale for reinstatement work; (4)In the alternative to order 3, an order that the operator pay to the resident an amount that is deemed by the tribunal to be excessive costs of repairs within the meaning of s. 163(6) of the Act. (5)An order that a penalty of 50 unit points be imposed on the operator for breach of s. 169(1) of the Act. (6)An order that the operator pay interest to the resident on the aggregate of all monies ordered to be paid by the operator to the resident in accordance with the rate specified in Uniform Civil Procedure Rule 36.7 calculated from 26 August 2013 - the date on which the incoming resident wished to take possession and pay the incoming contribution. (7)Such further or other orders as the Tribunal deems fit. 2The reasons for seeking the above orders were as follows: (1)The village operator ('operator') has wrongfully charged the resident the sum of $12,724.80 for the "operator's costs of sale up to 30 June 2013 pursuant to s. 170(1) of the Act" in circumstances where: (a)the operator was not appointed as selling agent; (b)the operator has purported to divide "marketing costs attributed to Deepwater Court by the number of re-sales in the previous financial year" and then charge the resident this amount; (c)the charge made in (b) above is not a 'cost of sale' within the meaning of s. 170(1) of the Act; (d)the operator was not entitled at law to make the charge; and (e)the operator should in fact under s. 170(1) of the Act share the resident's costs of sale which were incurred by the resident in selling the premises. (2)The operator has wrongfully charged the resident the sum of $10,318.00 for "Reinstatement work under clause 16.3(b)(ix) of the lease" in circumstances where: (a)clause 16.3(b)(ix) permits the operator to charge the resident for "an amount to cover the cost of restoration under clause 13.5 if the resident has failed to do it"; (b)clause 13.5 obliges the resident to restore the Unit upon termination "where necessary due to unreasonable treatment by the Resident beyond fair wear and tear"; (c)there is no evidence that any purported damage was caused by "unreasonable treatment" of the resident; (d)there is no evidence that the damage restored was anything other than fair wear and tear in particular when the carpet was 10 years old; (e)on a proper construction of the lease, it is a condition precedent to liability under clause 16.3(b)(ix) that there be a request to restore the unit under clause 13.5 and a failure to restore the unit after such a request; (f)the resident was never requested to restore the unit under clause 13.5 (or at all) and therefore has not "failed to do (the restoration work)'Within the meaning of clause 16(3)(ix) of the lease and is therefore not liable for the cost of restoration; and (g)the cost of repairs is excessive within the meaning of section 163(6) of the Act. (3)The operator, who was not appointed selling agent, in breach of section 169(1) of the Act interfered with the resident's sale of the premises by: (a)refusing to issue lease documents until such time as the incoming lessee has an "unconditional exchange of contracts on her own home" when it had no entitlement at law to impose such a condition; and (b)requiring restoration work to be carried out when the incoming lessee had entered into an agreement with the resident that she would take the premises in its current state of repair and condition, thereby depriving the resident of part of the consideration for her sale. (4)The operator, in circumstances where it had not been appointed selling agent, failed to facilitate the contract for sale between the resident and her purchaser. 3The application arises from sale of the unit leased by the Late Mrs Joan Aubrey who had leased a unit in the Village on 4 April 2003. Mrs Aubrey died on 27 May 2013 and her executors thereupon commenced making arrangements for the "sale" of the unit. The procedure in this Village is the common method employed by which a resident paid an "ingoing contribution" from which is deducted, according to calculations provided for in the lease, any amounts due to the Village, the balance being paid to the estate. In this case, a "prepaid rental" component accruing to the operator at the rate of 3.5% per annum for the first 10 years of the lease and 0.25% per annum for the 11th to 30th year of the lease is deducted and then a series of further deductions made up of a "departure fee", any capital loss, various legal expenses, any outstanding recurrent charges and interest, costs of reinstatement work (restoring the premises to the condition they were in at the start of Mrs Aubrey's lease) and finally the operator's costs of sale of the unit. All the above provisions and calculations are according to the terms of the lease, except the final deduction for the operator's costs of sale of the unit which is stated to be pursuant to s170(1) of the Act. 4The main monetary components of the claim relate to the operator's costs of sale which were calculated in the sum of $12,724.80 and the reinstatement costs calculate in the sum of $10,318.00, plus interest on those amounts.