Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Helen Dowling and James Dowling v Living Choice Australia Ltd [2014] NSWCATCD 190 Hearing dates: 7 August 2014 Decision date: 07 October 2014 Before: K Ross, General Member Decision: 1.The Tribunal orders that the respondent accept responsibility for the air conditioner in the applicants' premises, and charge the cost of repairs and replacement as required by the Retirement Villages Act 1999. Catchwords: Repairs and maintenance Legislation Cited: Retirement Villages Act 1999 Category: Principal judgment Parties: Helen Dowling and James Dowling, (applicants) File Number(s): RV 14/19829 Publication restriction: Unrestricted reasons for decision The application 1The applicants seek an order that the respondent acknowledge its responsibility under s 101 of the Retirement Villages Act 1999 to repair and maintain, and if necessary replace, the air conditioning unit in the applicants' unit. The respondent opposes the order sought. Jurisdiction 2The Tribunal is satisfied that the agreement between the parties is an agreement in respect of premises within a retirement village. The Tribunal accordingly has jurisdiction to determine the dispute. The evidence 3The applicants provided a statement of evidence and copies of correspondence relating to their agreement with the respondent, invoices and evidence of payment for inter alia the inclusion of the air conditioner in their unit. The respondent provided a copy of the Agreement for Lease dated 22 May 1998, the Lease dated 26 August 1998, and written submissions in support of its position. Discussion and Findings 4The Agreement for Lease contains at clause 6 the following: 6. EXTRA WORKS FOR LESSEE (a) If the lessee desires any alterations to the Lessor's works in respect of the premises, the Lessor may if it so desires and in its absolute discretion and at the entire cost and expense of the Lessee which cost and expense shall in no event be refundable carry out the works PROVIDED THAT payment of such cost and expense is made to the Lessor before commencement of such work. (b) Any alterations to which the Lessor agrees shall be carried out by the Lessor or its contractors under the supervision of the Lessor's Architects. (c) The Lessor may require the Lessee to pay to the Lessor in advance all fees payable to any local or statutory authority and all other costs incurred pursuant to this clause. 5The correspondence dated May 13 1998 from the applicants to the then operator includes a request for air conditioning to be installed in the unit. When the applicants moved into the unit in August 1998, they say that the air conditioning had been installed. They provide a copy of an account received on 8 October 1998 for some of the other alterations they had requested. The air conditioning was not included. They gave evidence that they followed the issue up and have provided a copy of the invoice received and evidence of payment of that invoice on 24 March 1999. 6The residents say that they were never in any doubt that the extras, including the air conditioner, were "part of the deal". 7Neither the Agreement for Lease nor the Lease make any particular provision for the ownership of any extras provided pursuant to Clause 6. In these circumstances, as a fixture attached to the land, the Tribunal finds that the air conditioner formed part of the premises owned by the Lessor and leased to the Lessee. 8The Lease made repairs and maintenance the responsibility of the Lessee (see clauses 9.3.2 and 9.3.3). 9However in 2000, the Retirement Villages Act 1999 came into operation. Section 99 stated that the operator must maintain items of capital in the village in a reasonable state of repair, having regard to various matters. The Act stated that the requirement did not apply to any item of capital owned by a resident. Accordingly, as the Tribunal has found that the air conditioner, as a fixture was owned by the Operator, the Operator became responsible to maintain it. 10The applicants gave evidence that in response to the commencement of the Retirement Villages Act 1999, the Operator offered residents the opportunity to have items transferred to the resident for consideration of $1. The respondent was not the Operator at the time. Whilst the residents said that they remembered the arrangements, there was no detailed evidence before the Tribunal which would enable the Tribunal to determine what items in particular were the subject of the alleged arrangement, and in particular it is not possible for the Tribunal to determine whether ownership, and hence responsibility for repairs and maintenance of the air conditioning plant and equipment was transferred to the residents. The Tribunal cannot make a finding that this was the case. 11As the respondent cannot prove that ownership of the air conditioning was transferred to the applicants in 2000, there was no requirement for the residents to include the air conditioning in the Form 26 in 2010, as ownership of the air conditioner has always remained with the Operator. 12For these reasons the Tribunal is satisfied that it is appropriate to make the order sought by the applicants. K Ross General Member Civil and Administrative Tribunal of New South Wales 7 October 2014 I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 December 2014