The Residents Committee of the Landings v Sakkara Investment Holdings Pty Ltd T/As Sakkara Landings Trust [2015] NSWCATCD 113

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: The Residents Committee of the Landings v Sakkara Investment Holdings Pty Ltd T/As Sakkara Landings Trust [2015] NSWCATCD 113 Hearing dates: 25 June 2015 Decision date: 03 September 2015 Jurisdiction: Consumer and Commercial Division Before: A P Coleman SC, Senior Member Decision: 1 Order that within 21 days from the date of these orders, the respondent pay into the Village Operating Account the sum of $1,338.00 representing the cost of the purchase of new fly screens. 2 Order that within 21 days of the date of these orders the respondent pay to each of the 220 eligible residents the sum of $135.52 by way of refund of overcharged recurrent charges. 3 Order that within 21 days of the date of these orders, the respondent provide to the applicant a statement of financial position (balance sheet) for FY14 the accounts. 4 Order that within 21 days of the date of these orders the respondent have prepared an audited report of the FY14 accounts to take account of the net surplus of $65,717.00 as disclosed in the final audit reports of the accounts of FY12 and FY 13 dated 16 March 2015 and that the respondent bear the cost of such report and if that report shows a deficit order that within 7 days of receipt of that report, the respondent make good any such deficit. If the report discloses a surplus, the surplus is to be dealt with in accordance with s 120B of the RV Act. 5 Order that the respondent withdraw all invoices issued by it in May 2015 to any resident, past or present, seeking to recover additional recurrent charges as a result of the audit reports of the accounts for FY12 and FY13 dated 16 March 2015 and that the respondent not issue to any other resident any invoice for recurrent charges for those years. 6 Order that within 7 days of the date of these orders the respondent repay to any resident, past or present, any amount paid by such resident purportedly in compliance with any invoice referred to in order 5 above. 7 The application otherwise be dismissed. 8 No order as to costs. Catchwords: RETIREMENT VILLAGES: recurrent charges: overpayment and refund. Accounts: effect of final audit to possible challenge of accounts. Capital maintenance and capital expense. Legislation Cited: Civil and Administrative Tribunal Act (NSW) 2013 Retirement Villages Act, (NSW) 1999 Retirement Villages Regulation, (NSW) 2009 Cases Cited: Alloura Waters Retirement Village Residents Committee v Living Choice Australia Pty Ltd [2014] NSWCATCD 68 Bull v A-G (NSW) (1913) 17 CLR 370 at 384. Smith v Sakkara Investment Holdings Pty Ltd 2011] NSWCTTT 162 Sakarra Investment Holdings v The Residents Committee, The Landings [2103] NSWCTTT 263 Sakkara Investment Holdings Pty Ltd as trustee for Sakkara Landings Trust v The Residents Committee, the Landings and the Consumer Trader and Tenancy Tribunal of New South Wales [2014] NSWSC 610 Category: Principal judgment Parties: The Residents Committee of the Landings (applicants) Sakkara Investment Holdings Pty Ltd t/as Sakkara Landings Trust (respondent) Representation: Solicitors: Mr Hill, Hill & Co Lawyers (for applicants) Mr Koumoukelis, Gadens Lawyers (for respondent) File Number(s): RV 14/57001 Publication restriction: Nil