Estate of Madeline Cozma v Milstern Retirement Living Pty Ltd t/as Golden Lifestyles [2016] NSWCATCD 56

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Estate of Madeline Cozma v Milstern Retirement Living Pty Ltd t/as Golden Lifestyles [2016] NSWCATCD 56 Hearing dates: 23 June 2016 Decision date: 10 August 2016 Jurisdiction: Consumer and Commercial Division Before: P French, General Member Decision: 1. Pursuant to section 161 of the Retirement Villages Act 1999 the Tribunal Orders that the departure fee payable by the Estate of Madeleine Cozma to Milstern Retirement Living Pty Ltd on the sale of the Lease in respect of Unit 48 of Strathfield Gardens Retirement Village is to be limited to 10% of the sale price plus GST.

2. The application is otherwise dismissed on the basis that it is misconceived. Catchwords: RETIREMENT VILLAGES – right to residence –recurrent fees owed on permanent vacation – departure fees – failure to market and promote sale of retirement unit Legislation Cited: Retirement Villages Act 1999 Civil and Administrative Tribunal Act 2013 Category: Principal judgment Parties: Estate of Madeleine Cozma by its Executors Anita Cozma and John Cozma (Applicants) Milsten Retirement Living Pty Limited (Respondent) Representation: Jerry Safar, authorised representative of applicants; Ms Leisel Pierce, solicitor, CLS Legal for the respondent File Number(s): RV 15/63918 Publication restriction: Nil

REASONS FOR DECISION

Introduction 1. This is an application to the Tribunal pursuant to the provisions of the Retirement Villages Act 1999 (RV Act) made on behalf of the executors of the Estate of the Madeline Cozma (the Estate), who are her adult children Anita and John Cozma (the Applicants). Up to the time of her death, the late Madeleine Cozma was a resident of residential premises (Unit 48) under the terms of a Lease and Residence Contract at Strathfield Gardens Retirement Village (Strathfield Gardens) which is operated by Milstern Retirement Living Pty Ltd trading as Golden Lifestyles (the Respondent). The Applicants seek an Order from the Tribunal pursuant to section 82 of the RV Act that would require the Respondent to recognise the right of a person now occupying Unit 48 to enter into a residence contract with the Respondent; an Order pursuant to section 128(a) RV Act that would require the Respondent to comply with section 152(3) of the RV Act in determining the recurrent fees owed by the Estate; and, an Order pursuant to section 161 of the RV Act that would reduce or waive the departure fees owed by the Estate to the Respondent on the sale of the Lease. This application was made to the Tribunal on 26 November 2015 (the Application). 2. For reasons that are set out following the Tribunal refuses to make an Order pursuant to section 81 of the RV Act that would recognise the person specified by the applicants, Mr Safer Safer, as having a residence right entitling him to enter into a residence contract with the Respondent on the basis that he is not a person entitled to be so recognised. Mr Safer Safer was not a person occupying the residential premises concerned at the time the late Madeleine Cozma died. The Tribunal has also refused to make an Order pursuant to section 128(a) of the RV Act requiring the Respondent to comply with section 152(3) of the RV Act because the Applicants have not established any failure by the Respondent to comply with the requirements of that section. However, the Tribunal has determined that the Applicants are entitled to an Order pursuant to section 161 of the RV Act that will reduce the departure fees owed by the Estate to the Respondent on the sale of the Lease to 10% of the sale price plus GST. The Applicants are entitled to this Order because the Respondent and a related entity failed to effectively market and promote the sale of the Lease and engaged in other conduct that has inhibited the sale of the Lease.