Bailey v RSL Lifecare Limited [2015] NSWSC 448

Supreme Court New South Wales

Medium Neutral Citation: Bailey v RSL Lifecare Limited [2015] NSWSC 448 Hearing dates: 27 February 2015 Date of orders: 22 April 2015 Decision date: 22 April 2015 Jurisdiction: Equity Division Before: Darke J Decision: Summons is dismissed with costs. Catchwords: CONTRACT – formation – whether concluded agreement reached for licence of unit in retirement village – held, no binding contract made

EQUITY – equitable estoppel – whether operator of retirement village precluded from denying that it is bound to proceed to licence unit in retirement village – whether reasonable for plaintiff to consider that operator was irrevocably committed to proposed transaction – held, claimed estoppel not established Legislation Cited: Retirement Villages Act 1999 (NSW) ss 26, 43 Retirement Villages Regulation 2009 (NSW) cl 15A Cases Cited: Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 Category: Principal judgment Parties: Kerrie Lee Bailey (plaintiff) RSL Lifecare Limited (defendant) Representation: Counsel: G A Moore (plaintiff) B Ilkovski (defendant)

Solicitors: Sharon Moss Legal (plaintiff) Atkinson Vinden (defendant) File Number(s): 2014/327037 Publication restriction: Nil

Judgment

Introduction 1. The plaintiff, Kerrie Bailey, alleges that a binding contract was made with the defendant whereby the plaintiff would licence a residential unit (Northern Unit 22) in the retirement village operated by the defendant at Narrabeen ("the Village"). She seeks a decree of specific performance of the alleged contract. 2. The plaintiff contends, in the alternative, that the defendant, by its conduct, is precluded by an equitable estoppel from denying that it is bound to enter into the alleged agreement. 3. The defendant, RSL Lifecare Ltd, denies that a concluded agreement was reached. It contends that it gave no approval to the transaction and that even if approval was given, viewed objectively, it should not be determined that a binding agreement had been reached. The defendant contends that even if a binding agreement had been made, a decree of specific performance should be refused because such a decree would require the defendant to act in breach of the Retirement Villages Act 1999 (NSW) ("the Act"). The defendant further denies that any estoppel arises in the circumstances. 4. The proceedings were commenced by Summons filed on 6 November 2014. The plaintiff's case is supported by an affidavit she swore on 5 November 2014. The defendant relies upon affidavits sworn by Ron Thompson, its Chief Executive Officer, Mark Broadhead, its Chief Financial Officer, George Main, the General Manager of the Village, and Rita Banning, who is employed in the accounts department at the Village. Only the plaintiff and Mr Main were cross-examined.