Murphy v Trustees Catholic Aged Care Sydney [2017] NSWCATAP 139

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Murphy v Trustees Catholic Aged Care Sydney [2017] NSWCATAP 139 Hearing dates: 06 February 2017 Date of orders: 23 June 2017 Decision date: 23 June 2017 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President L Pearson, Principal Member Decision: (1) The appeal is upheld for the purpose of making the orders below but is otherwise dismissed;

(2) Orders 1, 2 and 3 made in the proceedings below are affirmed;

(3) Orders 5 and 6 made in the proceedings below are set aside;

(4) The Operator is directed to take all reasonable steps to ensure residents comply with village rule 4 (in the form it was in immediately prior to 17 November 2014);

(5) Pursuant to s 128(c)(ii) of the RV Act, the Operator is ordered to take all reasonable steps to ensure that the occupants of unit 20 comply with the following rules:

8(b): you must not obstruct or permit the obstruction of walkways, entrances, stairways, corridors, fire escapes, light, windows or other parts of the common areas (for example, pot plants, hoses, brooms, racks and other items may present a hazard if left on common areas).

9(a): you must not hang any washing, towels, bedding, clothing or other article on any balcony or other part of your unit in such a way as to be visible from the outside. Such items may be hung on any lines provided in the common areas but only for a reasonable period.

(6) The application is remitted back to the Consumer and Commercial Division of the Tribunal for a rehearing limited to the question of whether the Tribunal should make an order that the deficit of $23,960.00 in respect of the 2013/2014 year paid from the account variously described as the village special account or the reparation account be repaid by the Operator to that account, and in respect of the remittal, the parties may file fresh evidence. Catchwords: Retirement Villages Act 1999 and Retirement Villages Regulations 2009 – amending village rules – returning officer – making good deficits Legislation Cited: Civil and Administrative Tribunal Regulation 2013 Retirement Villages Act 1999 Retirement Villages Regulation 2009 Cases Cited: House v King (1936) 55 CLR 499 Texts Cited: Nil Category: Principal judgment Parties: John Peter Murphy (Appellant) Trustees Catholic Aged Care Sydney (Respondent) Representation: Counsel: M Walsh (Respondent)