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) Solicitors: Makinson D'Apice (Ms Limon) (Respondent) File Number(s): AP 16/39068 Publication restriction: Unrestricted Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not Applicable Date of Decision: 22 September 2015 Before: J Smith, Senior Member File Number(s): RV 14/43869 reasons for decision Background 1. This is an appeal from a decision published by the Tribunal on 22 September 2015 (which we will refer to as the Decision). Although the Notice of Appeal was not filed until 30 August 2016 leave to extend the time for filing of the appeal has previously been granted and there is no issue therefore between the parties that the appeal should not proceed on the basis that it was filed beyond the time regulated by the Civil and Administrative Tribunal Regulation 2013 (the Regulation). 2. At the appeal hearing the respondent tendered the following folders without objection from the appellant: 1. A bundle of documents constituting the respondent's evidence and submissions at the first instance hearing (marked Exhibit 1): 2. Three folders containing the appellant's evidence (including the amended application) tendered at the first instance hearing (Exhibit 2); 3. A title search in respect of the land upon which the retirement village is located (Exhibit 3); and 4. A draft order proposed by the respondent (Exhibit 4). 1. In addition to the Notice of Appeal, the Appeal Panel was provided with the following documents: 1. The Reply to Appeal filed by the respondent; 2. A document filed by the appellant headed "Grounds for Appeal"; 3. The respondent's submissions in reply to the appellant's grounds of appeal; 4. A transcript of the first instance hearing prepared by the respondent (we note that at the appeal hearing the appellant indicated that he had no objection to the transcript and that it accurately recorded the first instance hearing); and 5. The appellant's reply submissions. 1. The dispute between the parties arises out of the agreement which was entered into between the parties by which the appellant, as resident, and the respondent, as operator, provided for the appellant to reside in a retirement village. Their relationship is governed by the Retirement Villages Act 1999 (RV Act). We shall refer to the appellant as Mr Murphy and to the respondent as the Operator. The Decision Below 1. The Decision records that Mr Murphy's application was amended more than once and the amended application (upon which the Tribunal proceeded) was filed on 30 March 2015. As is apparent from the Decision the dispute between the parties concerned a number of issues and the Decision dealt with the issues by reference to the nine orders sought by Mr Murphy. For convenience it is helpful to briefly set out the nature of each order sought and a summary of the Tribunal's findings. We do this in the following paragraphs. Order 1 1. The Decision states that Mr Murphy sought orders that the Operator enforce village rules and prevent changes detrimental to the residents' future. The background to this order concerned complaints about visitor parking. In particular, it concerned Mr Murphy's assertion that changes to visitor parking derogated from the original visitor parking which had been provided and in turn that those changes had an impact on the capacity of emergency services and others to access residents. 2. The Tribunal found that there was no evidence at the time of the hearing of a breach of the village rules in relation to parking, such that any order is required. The Tribunal found that the village rules were amended by special resolution at a meeting of the Residents Association on 17 November 2014. The Decision referred to the requirement under the RV Act (s 59A) imposed upon the operator to take all reasonable steps to ensure emergency and home care vehicles have unimpeded access. The Decision found that there was no evidence that the amended village rule had any untoward effect on access of emergency vehicles. The Tribunal declined to make an order, as sought, to the effect that the Operator prevent changes which will be detrimental to the residents' future upon the basis that such an order was not within the power of the Tribunal. Order 2 1. Mr Murphy sought an order that the Operator comply with the RV Act and regulations in that monies drawn from a "village special account" to balance the 2013/2014 budget be repaid. Mr Murphy identified a net deficit of $23,960.00 in that financial year, which amount Mr Murphy alleged had been paid in to the village accounts to make up the deficit from monies held in the special account. 2. The Tribunal analysed Mr Murphy's allegation as one which involved the assertion that there was a misdirection of funds by the Operator from a capital works fund (incorrectly designated the Vaughan Village Special Account) to fund the deficit in the budget. The Decision records that the Operator submitted that the capital works fund was in fact a deferred maintenance fund and not a capital works fund. The Tribunal found that it was not satisfied that Mr Murphy had made out a case justifying the making of order 2. Order 3 1. Mr Murphy sought an order for the Operator to refund amounts allegedly charged for capital works and renovation of units and for the provision of security in the financial year of 2013/2014. 2. In the Decision the Tribunal referred to Mr Murphy's claim that security is the responsibility of the Operator pursuant to the provisions of the licence agreement between the parties. The Tribunal found that there was no reference to any specific aspect of that agreement that made the Operator responsible for security. The Tribunal found that there was no basis for Mr Murphy's assumption that such responsibility extends to replacement of keys and locks. 3. The Tribunal went on to state that this issue could be more correctly analysed on the basis of considering whether the cost in respect of any specific item is for capital maintenance (in which case it is to be paid from recurrent charges) or for capital replacement (in which case it is to be paid for by the Operator). The Tribunal found that on the evidence it was not possible to make a determination and that, even if made, there is no specific sum mentioned in Mr Murphy's submission. 4. The Decision referred to Mr Murphy's claim for a refund of amounts expended for capital works and renovations and found that there was insufficient evidence to disclose any specific sum for which orders were sought. However, the Tribunal itself identified some items to which the Operator "needs to pay closer attention in the future". The Operator acknowledged that the sum of $3,117.00 had been incorrectly charged as items of maintenance in the 2013/2014 budget and gave an undertaking to reimburse that sum. An order to that effect was made but otherwise the application for order 3 was dismissed. Order 4 1. Here, Mr Murphy sought orders requiring the Operator to carry out capital replacement works. The Tribunal found that the obligation for capital maintenance and capital replacement is placed by the RV Act on the Operator. The Tribunal found that a fountain which had not been operating for some years should be the subject of an order to put it into proper working order. An order was made to that effect. Order 5 1. Mr Murphy sought an order for the Operator to comply with the RV Act in relation to presentation of budgets and obtaining consent to them, and an order for a refund of overpaid recurrent charges for the year 2013/2014. The Tribunal found that on the evidence available, Mr Murphy was entitled to an order that the Operator in future fully comply with its statutory obligations in respect of proper notice of proposed budgets and variations in recurrent charges. However, the Tribunal decided that there was no utility in attempting to dismantle the payments already made and to order a refund of overpaid recurrent charges because to do so would result in additional charges being made to offset any such refunds. The Tribunal went on to say that Mr Murphy had not provided a submission as to the actual amount of any overpaid recurrent charges. Order 6 1. Mr Murphy sought an order for the Operator to amend the licence agreement between Mr Murphy (and Mrs Murphy) and the Operator so as to make that agreement consistent with the disclosure statement which had been provided to Mr Murphy, and, also an order to compensate Mr Murphy. The inconsistency alleged by Mr Murphy was to the effect that in the disclosure statement provided by the Operator to Mr Murphy and Mrs Murphy (prior to them taking up residency) there was a statement of a range of prices for acquiring an interest in the village. That range was between $400,000.00 and $550,000.00. Mr Murphy in fact paid $560,000.00. There was a similar type of complaint in relation to the garage: the disclosure statement indicated the cost of the garage was $12,000.00 but Mr Murphy was charged $20,000.00. There was also a complaint about legal fees exceeding the amount disclosed in the disclosure statement. 2. In the Decision the Tribunal referred to s25 of the RV Act which the Tribunal stated had the effect that there is a deemed alteration of any village contract to provide consistency between its provisions and the disclosure statement. Therefore, there was no need to amend the agreement. The Tribunal also found that Mr Murphy had not demonstrated any loss for which he was entitled to compensation. The Tribunal noted that the compensation sought was an order to vary the departure fee percentage. As Mr Murphy had not yet left the village, the departure fee had not yet been incurred and therefore no loss has occurred. 3. The Decision referred to a submission in relation to ownership of the village and the Decision records that the Tribunal did not understand the order Mr Murphy required to be made. The Decision also referred to Mr Murphy's submission in respect of flooring but the Decision records that that allegation was also not understood. Order 7 1. Mr Murphy sought orders directing the Director General (being a person defined in s 4 of the RV Act) to investigate and report whether the village will be able to pay departure fees from the ingoing contributions and whether the Operator has given false and misleading information. The Tribunal found that it had no jurisdiction to make such an order. Order 8 1. Mr Murphy sought an order that the Operator "disregard" the residents' committee on the basis that that committee had been invalidly constituted. Mr Murphy asserted that a body calling itself the Residents' Committee was not a residents' committee as described in the RV Act. 2. The Tribunal found that there was no order making power enabling the Tribunal to order the Operator to "disregard" the residents' committee. The Tribunal also declined to make an order on the basis that it was not satisfied that a Mr O'Brien and Mr O'Shea were current members of the residents' committee. Order 9 1. Mr Murphy sought an order to the effect that the Tribunal should refuse any costs application that may be made by the Operator and for an order that the Minister fund an advisory and advocacy service to Mr Murphy, and further order that an investigator be appointed under the provisions of the RV Act. The Tribunal interpreted Mr Murphy's submission to concern the issues of conduct money in relation to a summons requested by Mr Murphy and made directions for the parties to file and serve submissions with respect to costs of the proceedings. In addition, the Tribunal stated it had no order making power to require the Minister to assist Mr Murphy. 2. The Tribunal then made orders, the essence of which is described below: 1. Order 1 – the Operator is to comply with the obligations imposed upon it pursuant to s 93 of the RV Act and specifically pursuant to s 128(1)(d), the Operator is to repair or replace the fountain the subject of application for order 4; 2. Pursuant to the RV Act (s 128(1)(e)) and the undertaking given by counsel an order was made that the Operator pay the sum of $3,117.00 into the village operating account; 3. Pursuant to s 128(1)(a) of the RV Act, the Operator is directed to comply fully with its obligations under the RV Act specifically in regards to s 106 and s 112 regarding notice of proposed annual budget and changes to the recurrent charges; 4. The application is otherwise dismissed; and 5. If the parties cannot agree on costs, leave was granted for that issue to be progressed further with the Tribunal by the exchange of submissions. Notice of Appeal 1. The Notice of Appeal addressed each of the nine orders. However, in addition, the Notice of Appeal asserted that Mr Murphy had suffered procedural unfairness in the conduct of the proceedings. He submitted the following: 1. He was only allowed two hours to present his case; 2. He was disadvantaged by the fact that the Tribunal gave leave to the Operator to be represented by solicitors and counsel, whereas he was "left to founder unprotected"; 3. He was not permitted to object to new material tendered by the Operator at the hearing; 4. He was not allowed to complain when he could not hear what was being said; 5. He was not given an effective opportunity to reply to the Operator's submissions at the hearing because he was not informed of the opportunity and took no notes; 6. He was told that he was wasting the Tribunal's time when he tried to address a particular issue, namely whether he could "expand" his application to include church trustees; 7. Generally he was not treated on an equal basis when compared to the treatment provided to the representative of the Operator; and 8. The Member had not read the application. 1. It is convenient to describe Mr Murphy's grounds of appeal to the Decision by reference to each of the orders to which we made reference earlier. Order 1 1. Mr Murphy relied upon s 51 of the RV Act. That section deals with amendments to the village rules and sets out the procedures which are to be followed in the event that either the operator or the residents wish to amend the village rules. Mr Murphy submits that there was no evidence that the section was complied with when the village rules were amended on 17 November 2014. Mr Murphy submitted that there was evidence before the Tribunal concerning the procedures adopted at the meeting of 17 November 2014, which demonstrated that s 51 had not been complied with and nor had the requirements set out in the Retirement Villages Regulation 2009 (the RV Regulations) been followed. Mr Murphy asserted that what happened at the meeting of 17 November 2014 was as follows: 1. The acting chair Mr O'Brien appointed an individual as the returning officer. Mr Murphy stated that that individual was not eligible to hold the position and was also listed as an apology for the meeting; 2. The returning officer did not comply with the RV Regulations in that the returning officer must be a resident who is not a member of the residents' committee and must be selected by a show of hands; and 3. The requirements of s 51(3A) were not complied with. This provision requires the Operator to notify residents of the outcome of any vote taken to amend village rules. 1. We interpret Mr Murphy to be submitting that the Decision was in error in finding that the village rules were amended by special resolution passed at a meeting on 17 November 2014. We interpret the Notice of Appeal to raise also another ground, namely that the Decision was in error in finding that the amended village rule was not in conflict with s 59A of the RV Act. That section, in summary provides that the operator must take all reasonable steps to ensure that emergency and home care service personal have unimpeded vehicular access to the residential premises in the village at all times. 2. A further ground of appeal with respect to order 1 appears to be that the Decision was in error in failing to mention Mr Murphy's complaint concerning a resident who has parked his car in visitor parking for the past four years with the consequence that this resident has deprived the family of Mr Murphy of a place to park their vehicles on numerous occasions. 3. A further ground of appeal with respect to order 1 is that the Decision was in error in declining to make an order to the effect that the Operator should prevent changes to the village rules which are detrimental to the residents' future. Order 2 1. Mr Murphy's ground of appeal is that the Decision misunderstood an important fact, namely describing Mr Murphy's complaint as being that the source of funds used by the Operator to fund the 2013/2014 deficit came from a capital works fund when, in fact, Mr Murphy's concern was that there had been a "misdirection of funds" from the Vaughan Village Special Account. Mr Murphy submitted that there was no evidence that there was a capital works fund established. Mr Murphy submitted that the Vaughn Village Special Account constituted a fund established from monies paid by the Operator in "reparation for not providing ongoing care originally advertised to the early residents". Mr Murphy further submitted that the Decision did not deal with the fact that the fund (being a fund that represented "reparation money") had been misused by the Operator for the purposes of funding deficits. 2. Mr Murphy further submits that the Decision was in error in failing to have regard to RV Regulation 33(2) which provides that for the purposes of cl 20(5) of Sch 4 of the RV Act an operator is prevented in all circumstances from making a proposal under cl 20(1)(b)(i) or (ii) of that schedule that residents make good the whole or any part of any outstanding deficit except in circumstances where the deficit or the relevant part of the deficit resulted from a request by the residents for an additional item of capital or service. 3. In essence, Mr Murphy's submissions is that the effect of cl 33(2) of the RV Regulations when read with cl 20 of Sch 4 of the RV Act and s 120C, in the absence of the lawful consent of the residents, is that an operator must make up the deficit from its own funds and is prevented from seeking the consent of residents that the residents pay. There is an exception in the case where the deficit resulted from a request by residents for an additional item of capital or service. 4. Accordingly, the effect of Mr Murphy's submission with respect to order 2 is that the Decision was in error in concluding that Mr Murphy had not made out a case justifying the proposed order 2. Order 3 1. Mr Murphy submits that the Tribunal was in error in concluding that there was no provision in the agreement between Mr Murphy and the Operator making the Operator responsible for security. Mr Murphy relied upon clause 10 of the licence agreement which, in summary, states that it is the Operator's "job to ensure the Facility generally is reasonably secure". That clause goes on to say that the Operator is to provide and maintain locks and other security devices to ensure "your unit is reasonably secure". Mr Murphy submits that as a consequence of the Tribunal's Decision, the balance of his argument was overlooked. That argument was to the effect that the budgets presented by the Operator failed to include any item for security. However, s 98(2) of the RV Act requires the Operator in an annual budget to list each item of capital maintenance that is proposed to be carried out and specify in respect of each item the expected cost. 2. The balance of Mr Murphy's submissions concerning order 3 are to the effect that the provisions of the RV Act regulating the presentation and approval of annual budgets were not followed by the Operator and that the Decision was in error in finding that a budget could be approved in circumstances where the Operator had not complied with its obligations under the RV Act. 3. Mr Murphy also submitted that the Decision was in error in concluding that the evidence provided did not disclose any specified sum for which orders were sought. Mr Murphy stated that he had produced "pages of figures". A further ground raised by Mr Murphy in his submissions was that the Tribunal failed to consider s 106 of the RV Act concerning increases in recurrent charges exceeding CPI. Order 4 1. The Notice of Appeal does not, in our view, raise issues other than comments concerning the fountain. However, in his written submissions filed later, Mr Murphy made these submissions: 1. the Decision failed to consider capital items (i.e. other than the fountain); and 2. the order in relation to the fountain failed to require the fountain to be replaced with a comparable fountain. Order 5 1. In respect of order 5, the Decision included an order as proposed by Mr Murphy requiring the Operator to comply with its statutory obligations. However, Mr Murphy submits that since the order was made two budgets have been produced and the RV Act and RV Regulations have been ignored. In our view, this does not constitute a ground of appeal but rather a complaint concerning the ongoing conduct of the Operator. Such complaint, in our view, needs to be the subject of a fresh application. 2. The next ground of appeal concerning this order concerns the Tribunal's Decision to the effect that there was no utility in dismantling payments already made and to order a refund of overpaid recurrent charges because that would result in additional charges being made to offset any such refund. Mr Murphy contends that this aspect of the Decision is in error because it ignores the effect of s 120C of the RV Act which provides that the deficit is to be made good by the operator. That section regulates the ability of the operator to request or receive from the residents any special additional payments for the purpose of making good a deficit. Order 6 1. Mr Murphy contends that the Decision was in error in deciding that the claim for compensation was unnecessary or premature. Mr Murphy relied upon s 128 of the RV Act which gives power to the Tribunal to vary a provision of a village contract. He also relied upon s 25 which provides that to the extent that any term in a village contract is inconsistent, to the detriment of the resident concerned, with the information contained in the disclosure statement provided to the resident concerned, the contract is construed as if it contained the information in the statement instead of the inconsistent term. Further, Mr Murphy contends that the Decision was in error in stating that the effect of s 25 is to bring about a deemed alteration of any village contract to provide consistency with the disclosure statement and that, accordingly, there was no need for any order. Mr Murphy further contends that the Decision was in error in finding that Mr Murphy has not demonstrated any loss for which he is entitled to compensation because the amount to be charged does not arise until he leaves the village and, until then, no loss has occurred. 2. A further ground of appeal concerning order 6 was Mr Murphy's submission that the Tribunal ought to make orders by reason of the apparent confusion concerning the owner of the land upon which the village is situated. Mr Murphy referred to ss 182A, 182B, 182C and 182D of the RV Act. Those provisions refer to the creation of a charge over all of the land within the retirement village for the purposes of securing the entitlement to a refund to be paid to the resident. Although Mr Murphy referred to the amended application for the purposes of identifying the orders he sought, our examination of the amended application does not reveal the orders which Mr Murphy seeks. At a practical level, it appears as if Mr Murphy merely wishes the Operator to disclose the real owner of the land upon which the village is situated. We will revert to this aspect later in these reasons. Order 7 1. Mr Murphy's ground of appeal is that the Tribunal erred in not utilising s 189 of the RV Act to refer the proceedings to the Director – General. Order 8 1. Mr Murphy's ground of appeal with respect to order 8 may be described in these terms: 1. The Decision was in error in finding that a residents' committee was established in 2000 (par 93) and was elected again at the annual general meeting of 2013 (also par 98). Mr Murphy contends that there was evidence of the election of an advisory committee at the annual general meeting held on 18 August 2014; 2. The Decision was in error in describing Mr Murphy's contention that the election of the committee lacked validity because no chairman was elected and because the Operator's representative was involved in the election of and in the control of the committee. Mr Murphy contends that he made no such assertion; 3. The Decision was in error in describing Mr Murphy's contentions as including one to the effect that Mr Frank O'Brien and/or Mr Robert O'Shea are currently members of the residents' committee; and 4. Mr Murphy contends that he did not request the Tribunal to make a finding that the Operator's representative was on a non-existent residents' committee bur rather sought to persuade the Tribunal that no residents' committee was ever elected. Order 9 1. Order 9 concerned the issue of who should pay the others costs. We were informed at the appeal hearing that this issue has been resolved between the parties and accordingly it is not necessary for us to address the issue. Orders Appeal Panel Should Make 1. Mr Murphy has supplied a document setting out the orders which he submits the Appeal Panel should make. In summary they are these: 1. Order the Operator to enforce village rules and to prevent changes which will be detrimental to the villagers' future; 2. Order the Operator to comply with the requirements of the RV Act and Regulations and order monies withdrawn from the Vaughan Village Special Account to balance the deficit budget for the year 2013/2014 be made good to the Vaughan Village Residents Funds; 3. Order the Operator to refund monies charged for capital works and renovating units and providing security for the year 2013/2014 and that this matter be referred to the Director – General under s 189(d) and an investigator be appointed; 4. Order the Operator to carry out capital replacement in respect of the fountain, entrance steps, retaining wall, grill around base of tree in courtyard and carpets and fixtures in units, such replacement being to their original standard; 5. Order the Operator to conform to the RV Act in presenting proposed annual budgets and obtaining proper consent and further give an order directing a refund of overpaid recurrent charges for the year 2013/2014; 6. Order the Operator to amend the licence between the Operator and J and G Murphy so it is consistent with the Disclosure Statement. Also order compensation to ameliorate the financial and physical disadvantage they have suffered from this defective licence by reducing the annual departure fee to 1.5% and reducing the number of years the annual departure fee is charged to five years; 7. Order that the Tribunal direct the Director – General to investigate and report as to whether the Operator will be able to pay departure fees out of ongoing contributions and whether the Operator has given false or misleading information to residents; 8. Order the Operator to be aware that the body calling itself the Vaughan Village Residents' Committee is in fact a subcommittee of a non-existent residents' committee and that it is a committee which is not a residents' committee as contemplated by the RV Act; and 9. The Tribunal order that costs of the respondent not be paid by Mr Murphy, that the Minister be asked to intervene and fund the provision of advisory and advocacy services to Mr Murphy and that an investigator be appointed in accordance with the provisions of the RV Act and Regulations. 1. Mr Murphy did not specifically identify which of his grounds of appeal were said to raise questions of law and which were said to constitute grounds identified in cl 12 of Sch 4 of the NCAT Act. However, he did attach written submissions to the effect he had suffered a substantial miscarriage of justice because: 1. he was denied a fair hearing; 2. the Decision of the Tribunal was not fair and equitable; 3. the Decision was against the weight of evidence; and 4. the Member erred in making his decision in relation to the orders sought. 1. Mr Murphy submitted that he was denied a fair and equitable hearing and suffered procedural injustice. The basis for these submissions were: 1. He was not supplied with a hearing loop, was limited to two hours to present his case and was not allowed to present his case as he wanted; and 2. He was not allowed to add new material and was not allowed to complain that he could not hear. Reply to Appeal 1. The Operator has filed a Reply to Appeal, the effect of which may be summarised as follows: 1. The Tribunal was entitled to limit the time for oral submissions and that it was proper to do so; 2. The Operator does not accept that Mr Murphy suffered any disadvantage by not being supplied with a hearing loop and that Mr Murphy has not otherwise established any substantial miscarriage of justice which has deprived him of a chance of achieving a better outcome; and 3. The appeal does not identify any questions of law and that the Operator is not able to discern the grounds of appeal. Appellant's Written Submissions 1. The appellant filed a document headed "Appellant's Grounds for Appeal" in which he elaborated upon the matters raised in the Notice of Appeal. 2. In support of the submission that he was denied a "fair and equitable hearing and procedural justice", Mr Murphy submitted: 1. He had been denied a working hearing loop; 2. He had been denied procedural fairness by being denied a reasonable opportunity to present his case which concerned nine orders and 660 pages of evidence; 3. He was given the right to reply to the case presented by the Operator without being told beforehand that he would have such an opportunity. He did not take notes and could not hear a lot of what was said and therefore the right to reply was not fairly available; 4. He was "continually harassed" when presenting his case by the Senior Member's interruptions; 5. He was told to keep to the point when addressing the Tribunal; 6. He was told that he could not deal with matters concerning the ownership of the village as opposed to its operation; 7. He was told that there was no power given to the Tribunal to direct the Director General to do anything; 8. He was told he was wasting the Tribunal's time; 9. He was told to keep quiet when he tried to complain that he could not hear; 10. He was told by the Senior Member that he had had a meeting with the respondent before the hearing to ascertain who was the Operator and who owned the village. Mr Murphy submitted that he was not at that meeting and that such meeting was inappropriate; and 11. He was made aware during the hearing that the Senior Member had not read the application. 1. Under the heading that the Decision was against the weight of evidence, Mr Murphy stated that the Operator provided very little evidence. 2. The submissions then dealt with the Decision in respect of each of the orders sought. Mr Murphy's submissions have been incorporated into these reasons where we summarise the submissions contained in the Notice of Appeal. Respondent's Submissions 1. The Operator filed written submissions (in addition to the Reply to Appeal) opposing Mr Murphy's grounds of appeal. The following paragraphs summarise the effect of the Operator's submissions: 1. Mr Murphy was provided with a hearing loop. It was not compatible with Mr Murphy's hearing device. It was open to him to make enquiries with the Tribunal before the hearing to ensure that his device was compatible; 2. In any event, Mr Murphy interacted with the Member at the hearing consistent with him being able to hear the proceedings. He also made some oral submissions suggestive of his ability to hear. Further, he interjected from time to time, again consistent with him being able to hear and there was no complaint by him during the hearing suggesting that he could not hear; 3. The time limitation imposed by the Tribunal was reasonable and consistent with the obligations contained in s 38(6) of the NCAT Act. The time allocated to both parties was equal. Mr Murphy has not identified further submissions that he would have made had he been given more time and has not demonstrated how he was disadvantaged by the restriction imposed; 4. The transcript reveals that the Member was doing no more than exercising reasonable case management procedures; 5. In relation to the assertion that the Member had a meeting with the Operator before the hearing, the Operator states that that did not occur and that there is no foundation or basis for the allegation; 6. In relation to the assertion that the Member had not read the application, the Operator states that the Member indicated at the commencement of the hearing that he had reviewed the documents provided by the parties. The assertion by Mr Murphy has no foundation; and 7. The assertions made by Mr Murphy that the Decision was made against the weight of evidence has not been supported by any evidence put forward by Mr Murphy. 1. In addition, the Operator replied to each of the submissions made by Mr Murphy in respect of the nine orders which he had sought. We will deal with each of the respondent's submissions in turn. Order 1 1. The Operator submitted that Mr Murphy has not identified any error of law and it was open to the Senior Member to find on the evidence that the relevant meeting complied with the requirements of Sch 7 of the RV Regulation and s 51(3) of the RV Act. There was a finding to that effect in the Decision: see par 55. The Operator submitted that Mr Murphy's application (see page 15 of the amended application) demonstrated that the Residents' Committee proposed the amendment per s 51(1)(b) of the RV Act. The Operator submitted that Mr Murphy did not file any evidence in support of his assertion that the Operator was in breach of s 59A of the RV Act. The Operator submitted that the finding by the Senior Member at par 56 of the Decision (to the effect that there was no evidence that the amended village rule concerning temporary parking had any untoward effect on access of emergency vehicles) was open on the evidence. 2. The Operator further submitted that Mr Murphy did not raise or refer to s 51(3A) of the RV Act in the proceedings below. That subsection requires the operator to notify the residents of the village of the outcome of any vote taken to obtain the consent of the residents within 7 days after the operator becomes aware of the outcome of a vote amending the village rules. 3. The Operator submitted that, in any event, the failure to comply with s 51(3A) does not invalidate the special resolution passed by the residents. 4. The Operator referred to Mr Murphy's submission that the Tribunal erred in not considering any other breach of the village rules brought to the attention of the Tribunal in the application and the Operator submitted that Mr Murphy has not identified any error in the Senior Member's exercise of discretion: see House v King (1936) 55 CLR 499. The Operator submitted that order 1 of Mr Murphy's application sought an order under s 128 of the RV Act directing the Operator to comply with the Act or an order restraining a breach of the village rules or contract. Order 2 1. The Operator submitted that Mr Murphy has not identified any error of law in respect of order 2. Mr Murphy had submitted that the Tribunal erred in not considering or being aware of the power pursuant to which the order sought could be made. The Operator submitted that Mr Murphy has not specified what the power is which was not considered. 2. The Operator referred to the submission of Mr Murphy to the effect that the Tribunal erred in not considering the evidence provided by the Operator that there has never been a capital works fund, and the Operator submitted that the Tribunal was not satisfied that the deferred maintenance account was, on the evidence presented by Mr Murphy, a capital works fund (see par 61 of the Decision). That finding was open to the Senior Member based upon the evidence. The Operator referred to Mr Murphy's submissions that the Tribunal erred in claiming that a capital works fund is intended to meet the costs of capital items and, further erred in considering that the deferred maintenance fund was a fund of the residents rather than the Operator and in not considering ss 33(2) and 120C(1) and (2)(b) of the RV Act. In relation to these submissions, the Operator contends that on the evidence it was open to the Tribunal to find that there was insufficient evidence to conclude that the fund was a capital works fund. Order 3 1. The Operator referred to Mr Murphy's submissions that the Tribunal erred in not considering that budgets which did not conform to the RV Act could not be passed on the basis that they were not "legitimate budgets". The Operator submitted that the Senior Member was correct and that the order sought by Mr Murphy concerned the distinction between capital maintenance and capital replacement. The Operator submits that it was open to the Senior Member to find that there was insufficient information to make a determination particularly in the absence of expert evidence to substantiate a challenge to the audited accounts. Order 4 1. The Operator submitted that Mr Murphy has not identified any error of law. The Operator referred to the assertion made by Mr Murphy that the Tribunal did not consider the other capital items brought before the Tribunal (i.e. other than the fountain) and states that the Tribunal correctly identified the issue which was the subject of the order as being the fountain as per par 24 of Mr Murphy's reply document dated 5 June 2015 served by Mr Murphy in the proceedings below. In consequence of this, the oral submissions of Mr Murphy and of the Operator before the Senior Member were directed only to the issue of the fountain. 2. The Operator referred to Mr Murphy's submission that the Tribunal erred in not requiring the fountain to be replaced by a comparable fountain and submitted that the appropriate order was the one made by the Tribunal, namely an order to repair or replace as the basis for the order was s 128 of the RV Act. Order 5 1. The Operator submitted that the Senior Member dealt with order 5 based on the exercise of his discretion and it was open to him to exercise his discretion in the way he did based upon the evidence of Mr Murphy (see par 81 of the Decision). The Operator further submitted that even if the matters contended for by Mr Murphy are correct, it would not make any material difference to the Decision not to direct a refund for the following reasons: 1. Pursuant to s 109(3) of the RV Act, an application under s 109 of the RV Act seeking that the Tribunal order a refund of recurrent charges must be made within twelve months after the increase in the charges came into effect. The increase in charges for the 2013/2014 budget came into effect on 1 July 2013 being the commencement of the financial year to which the budget applied. Mr Murphy filed his application in the Tribunal below on 30 August 2014 and is therefore out of time in respect of any application under s 109(3) of the RV Act; 2. Mr Murphy did not bring the proceedings below on behalf of anyone else but himself; 3. There is evidence of the budgets being passed by the majority of the residents; and 4. The objections of Mr Murphy are procedural. Order 6 1. The Operator submitted that Mr Murphy has not identified any error of law. The Operator submitted that the Tribunal dealt with s 25(2) of the RV Act (see pars 87 and 88 of the Decision). In response to Mr Murphy's submissions that the Tribunal erred in not considering s 18(3A) of the RV Act, the Operator states that it was correct for the Senior Member to say at par 90 of the Decision that he had no understanding of the applicant's submissions in respect of the ownership of the land. The Operator submits that Mr Murphy has misconstrued the operation of part 10A of the RV Act which states that a charge attaches to the land within the retirement village and, the charge is not dependent upon ownership by the Operator. 2. In response to Mr Murphy's submission that the Tribunal erred in not considering that any loss would occur from the day the licence was entered into, the Operator submitted that Mr Murphy did not demonstrate any loss or the basis for loss. The Operator submitted that to the extent that Mr Murphy relied upon grounds relating to the disclosure statement, as a basis for compensation, Mr Murphy could have, but did not seek, an order under s 33 of the RV Act which was required to be made within three months after entering into the contract. Order 7 1. In response to Mr Murphy's claim that the Tribunal erred in deciding it had no power to direct the Director General to do anything and not considering s 189 of the RV Act, the Operator submitted that s 189 of the RV Act allows the Tribunal to refer matters to the Director General but does not give the Tribunal jurisdiction to direct the Director General to take any action. Order 8 1. The Operator submitted that Mr Murphy has not identified any error of law in respect of order 8. The Operator submitted that the order sought by Mr Murphy was that the Tribunal order the Operator to disregard the residents committee. The Operator submits that there is no power for the Tribunal to make such an order and the Tribunal was correct in its decision. Order 9 1. The Operator submitted that Mr Murphy has not identified any error of law in respect of order 9. The Operator submitted that the Tribunal was correct at par 103 of the Decision in stating that the submission of Mr Murphy was directed to the issue of conduct money. The Operator submitted that while the order sought by Mr Murphy in the Tribunal related to an application by Mr Murphy that the Tribunal deny costs to the Operator and ask the Minister to intervene to provide advisory services to Mr Murphy, all submissions and particulars of the breach were directed at the issue of conduct money and an award of costs for Mr Murphy. The Operator submitted that Mr Murphy failed to provide any evidence in support of order 9 and it was therefore open to the Tribunal to make the orders which were made in relation to order 9. 2. In response to Mr Murphy's submission that the Decision of the Tribunal to deal with costs after the hearing was contrary to the Tribunal's guidelines, the Operator submitted that it is normal and acceptable procedure for arguments in respect of costs to be heard after a decision has been made. The Tribunal did not err in that regard. Appellant's Submissions in Reply and Submissions made by both parties at the Appeal Hearing 1. Mr Murphy has filed lengthy submissions in reply. We summarise the effect of those submissions in the following paragraphs (unless they were described earlier in these reasons). It is convenient to also summarise the parties' oral submissions made at the hearing. 2. Mr Murphy submitted that the transcript as supplied by the Operator and the actual CD's recording the sound differ. He submitted that discussion between the Senior Member and the representative of the Operator are recorded in the transcript but are not recorded on the CD. He also submitted that the transcript reveals that counsel representing the Operator spoke so quietly that he was unable to hear what was being said. Mr Murphy further submitted that the hearing loop provided by the Tribunal did not work. Mr Murphy referred to parts of the transcript where he asserts that he was told not to interject (see page 32, lines 4-6). 3. Mr Murphy submitted that the Senior Member only dealt with items covered in oral evidence and, for example, the Tribunal did not deal with village rules other than parking in the context of considering order 1. Mr Murphy also submitted that in relation to order 4, the Tribunal did not deal with a substandard retaining wall, steel bracket in courtyard or stairs at the main entrance. 4. Mr Murphy submitted that the Tribunal was in error in its interpretation of s 189 of the RV Act. Section 189 (1)(d) states that the Director General has the function of investigating and reporting on any matters or making enquiries in relation to any matters "referred to the Director General by the Minister or by the Tribunal in connection with this Act". 5. Mr Murphy's submissions in reply then dealt with each of the orders he sought and his submissions and those of the Operator are summarised in the following paragraphs. Order 1 1. Insofar as order 1 is concerned, Mr Murphy repeated that the minutes of the meeting of the residents association dated 17 November 2014 did not conform with the requirements of the RV Act. He casts doubt on the efficacy of including the postal votes as the returning officer (P Hansen) was not present at the meeting to certify the authenticity of the voting papers. Mr Murphy submitted that the resolution concerning car parking shows a different number of votes for and against compared with the resolution in respect of the quarterly report. Mr Murphy concludes that the special resolution concerning car parking failed. Mr Murphy further submitted that the returning officer was not eligible and he relies upon the definition of returning officer contained in cl 1 of Sch 7 of the RV Act. That definition provides that a returning officers means a resident who is not a member of the residents committee and who is selected by a show of hands at the meeting of the residents; 2. Further, in respect of order 1, Mr Murphy submitted that the finding by the Tribunal that the amended village rule has not had any untoward effect on access of emergency vehicles was not based upon any evidence and that the Operator had the opportunity to demonstrate that the new rule did not impede the obligations set out in s 59A but failed to provide such evidence; and 3. A further point made by Mr Murphy concerning order 1 (this was not referred to in his written submissions in reply but was referred to in his oral submissions at the appeal hearing) was that in his application for an order, he referred to the fact that other users of units do not comply with obligations not to hang out washing so that it is visible from the outside. Mr Murphy's submission is that those matters were not dealt with in the Decision. 4. At the hearing of the appeal, counsel for the Operator made submissions with respect to order 1 and it is convenient to summarise the effect of those submissions at this point as follows: 1. Counsel submitted that there was evidence of a special resolution having been passed by the residents on 17 November 2014. The Tribunal was entitled to take into account that some level of informality is to be permitted about the way meetings occur. If, for example, there was a complaint about the fact that there was no returning officer, the minute, on its face, indicates substantial support well beyond 70% for the resolution to be passed. If the complaint concerns the fact that the resolution was not circulated to owners after the meeting, there is evidence of the proposed changes to the resolution before the meeting and that at a subsequent meeting the residents became aware by reason of confirming the accuracy of the prior minutes of 17 November 2014; 2. In relation to the issue of washing, the Operator proposed to consent to an order and during the course of the appeal hearing a draft order was handed up for consideration by the Appeal Panel (this was marked Exhibit 4). The Operator indicated it had no objection to the Appeal Panel making an order in the terms proposed by the Operator. Order 2 1. In his reply submissions, Mr Murphy submitted that he had not submitted that the relevant fund in question was a capital works fund as defined by the RV Act. He submitted that the Operator agreed that the relevant fund was not a capital works fund. Rather, his submission was that the fund consisted of money "of the residents". He submitted that the money was a "reparation" payment from the Operator paid some years ago because "the original ongoing care Vaughan Village originally advertised could not be provided". The money constituted 50% of the departure fees of the original residents. Mr Murphy's case was that over the years the Operator had used those funds as if they were the Operator's funds. 2. Mr Murphy's submission is that over the years, the budget has operated in deficit and that the deficit has been made up by the Operator drawing down on the fund of money owned by the residents. Mr Murphy submitted that the RV Act states that if the final accounts show a deficit then the operator's obligation is to make up the deficit from its own funds. At the hearing, Mr Murphy acknowledged that he could not produce documentary evidence concerning the establishment of the fund or documentary evidence concerning who owned the fund. 3. Counsel for the Operator submitted that the fund described by Mr Murphy as a reparation fund represented monies returned to the residents to be able to be used for funding various things in the village. Counsel submitted that over the years, the Operator, in conjunction with the residents, proposed budgets that have contained deficits and with the agreement of the residents, monies from the fund had been used to fund the proposed deficit. The residents have benefited because the recurrent charges have been kept at a lower level than otherwise would have been required. In relation to the year in respect of which Mr Murphy requires the budget deficit to be made up by the Operator (namely 2013/2014) the Operator presented a budget which was approved by the residents. The evidence for this is contained in the minutes of the meeting of residents held 20 May 2013 which was chaired by Mr Murphy. That meeting records that the residents approved the proposed budget. Order 3 1. During the hearing of the appeal, the parties reached an agreement to the effect that the Operator would pay $1,600.00 into the village account in respect of security obligations and that Mr Murphy agreed to drop any requirement for an order under order 3. Order 4 1. During the appeal hearing, Mr Murphy agreed that he had no complaint concerning the order made for the fountain to be repaired or replaced. Rather, his complaint is that the Operator has not fully complied with that order. We informed Mr Murphy that if he maintains the view that the order has not been complied with, he needs to lodge a fresh application with the Tribunal. His remedy is not one which can be dealt with by way of an appeal. 2. Mr Murphy then made submissions concerning other aspects which were the subject of his proposed order 4 which, he submitted had not been dealt with in the Decision. Mr Murphy referred to the replacement of a collapsed retaining wall by substandard work. He referred to photographs which formed part of his evidence before the Tribunal to demonstrate the inferiority of the work. Mr Murphy submitted that he should have an order from the Tribunal that the wall match the rest of the bricks and is brought up to the standard of the rest of the walls on the property. 3. In addition, Mr Murphy submitted that he should be entitled to an order in respect of a steel grate which had been removed. Tree roots had caused the grate to be elevated (creating a danger) and rather than fixing the ground levels, the Operator elected to remove the grate. A danger remains. Mr Murphy conceded that this matter was not the subject of his application before the Tribunal and acknowledged that therefore the Appeal Panel could not make an order with respect to that matter. 4. Mr Murphy said that in respect of repairs and maintenance, the Operator was operating pursuant to a letter dating 22 August 2014 published by Bishop Comensoli. Mr Murphy submitted that the policy described in that letter was not consistent with the Operator's obligations under the RV Act. 5. Counsel for the Operator submitted that the letter from the Bishop outlined the Operator's policies with respect to the up keep and maintenance of the units and the associated cost. Counsel submitted that Mr Murphy is seeking orders in respect of replacement of carpets and fixtures in units generally. However, there is no evidence before the Tribunal that the carpets or fixtures in any unit and, particularly his own unit, need replacing. Further, if they do need replacing, the cost is irrelevant because if they are items of capital, the Operator must pay for them. Counsel submitted that there was no evidence before the Tribunal that Mr Murphy's unit required capital replacement in relation to carpets and fixtures and accordingly, there was no need for an order. 6. Counsel for the Operator submitted that the evidence concerning the grate was that the residents required the grate to be removed and that until the hearing of the appeal there had been no complaints about the uneven levels at ground level. 7. With respect to the retaining wall, counsel for the Operator submitted that where the wall has been renewed, it is of a different colour because it is of a younger age than the balance of the wall. Counsel submitted that there was no evidence that the wall was structurally unsound. 8. Mr Murphy also made a submission that the Decision failed to address the issue of entrance steps but during the hearing of the appeal conceded that that matter did not form part of form part of his application. Order 5 1. Mr Murphy's submissions in reply concerned the question of whether his application for a refund of recurrent charges must have been made within twelve months. This issue was rendered irrelevant at the hearing of the appeal when counsel for the Operator proposed an order to deal with Mr Murphy's complaint concerning non-compliance with the requirements of the RV Act in circumstances where recurrent charges are increased by more than CPI. Counsel for the Operator proposed that the difference between the recurrent charges Mr Murphy was charged in 2013/2014 versus the charges that he should have been charged would be refunded to him. The budget approved the sum of $3,360.00 per annum per resident and the previous year the relevant figure was $3,141.00. Accordingly, the Operator proposes to return to Mr Murphy $219.00. 2. Mr Murphy submitted that that proposal was insufficient. There were two reasons. The first reason was that he claims that he has an entitlement to a proportion of the reparation fund referred to earlier and that the proportion of that fund used to make up the deficit should be also refunded to him to the extent of his interest. He also submitted that if he agreed to the order proposed by the Operator then in every future budget, the Operator will make sure that the recurrent charges are within CPI and that the resulting deficit will be made up by drawing on the reparation fund. In other words, the Operator will be able to avoid increasing recurrent charges above CPI by relying upon the reparation fund. Mr Murphy's second argument was that a number of residents were people who merely rented a unit and as renters they paid a rent but did not have an interest in the reparation fund. To the extent that the reparation fund was used to make up the deficit, these "renters" derived a benefit from money to which they had no direct or indirect entitlement. Order 6 1. The position of the parties with respect to order 6 has been adequately described earlier in these reasons. Consideration General 1. This is an appeal against an internally appealable decision and therefore it is regulated by the provisions of s 80 of NCAT Act. Thus, the appeal is available as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. The leave grounds are described in cl 12 of Sch 4 of the NCAT Act. Procedural Fairness 1. We have read the transcript of the first instance hearing and are of the opinion that Mr Murphy was not denied procedural fairness. The transcript reveals that he completed his case without being cut short. Similarly, he completed his reply without being cut short. He did not seek further time or complain that he needed more time. 2. The transcript supports Mr Murphy's claim that he was given a hearing loop which appeared not to have assisted him. However, there is no evidence that he did not hear what was being said. He appears from the transcript to have heard what was being discussed as he provided appropriate responses to statements directed to him. He was directed once not to interrupt the Operator's counsel but it cannot be said that he was not able to present his case, including his reply to the Operator's case, nor can it be said that it was clear that he failed to hear what was being said before him. 3. The time allocated to each side appears to have been fair and appropriate. Neither side had witnesses. Mr Murphy spoke in support of his case relying on submissions and material provided and counsel for the Operator did likewise. The Member foreshadowed that if a party needed more time, he would consider it (page 4, line 39). 4. There is no evidence that Mr Murphy was not permitted to object to new material tendered by the Operator. There is no evidence that the Member had a meeting with the Operator before the hearing as asserted by Mr Murphy, and denied by the Operator. 5. We conclude that the conduct of the hearing was fair and consistent with the Tribunal's obligations under ss 36 and 38 of the NCAT Act. 6. The ground of appeal alleging procedural unfairness is rejected. Order 1 1. The Decision accurately states that Mr Murphy sought an order that the Operator enforce village rules and prevent changes detrimental to the residents' future. In our view, a Tribunal cannot make an order in the terms requested. There are two reasons for this. First, an order requiring an Operator to enforce village rules goes beyond the power provided to the Tribunal under s 128 of the RV Act. That section provides that the Tribunal may make an order directing the Operator to comply with a requirement of the Act or Regulations, or an order that restrains any action in breach of any village contract or rule, or an order that requires the performance of any village contract or rule. There is a need, in our view, to identify the subject matter of the order so that the subject matter requiring compliance, or restraining action or requiring performance is identified. An order to enforce the Act or Regulations generally lacks sufficient particularity. Such an order does no more than repeat the effect of the Act, the Regulations or the village rules insofar as they impose obligations on the Operator. 2. Secondly, an order to prevent changes detrimental to the residents' future is in our view beyond the scope of the orders which the Tribunal may make under s 128 of the RV Act. In addition, such an order suffers from ambiguity because some changes may arguably be beneficial to some residents and detrimental to others. 3. Mr Murphy asserted that the village rule as amended would put the Operator in breach of s 59A of the RV Act. The amended village rule modified the prohibition on residents and overnight guests using visitor parking spots by allowing some residents (i.e. those waiting to purchase a space) to do so if in the judgment of the Operator there was no "great pressure for spaces in the visitor parking section". 4. In the Decision the Tribunal found that there was no evidence that the Operator breached s 59A of the RV Act. Mr Murphy was not able to take us to evidence demonstrating a breach of s 59A. Mr Murphy had the onus of demonstrating a breach. We do not accept Mr Murphy's submission that the Operator has the onus of demonstrating that there has been no breach of s 59A. 5. Mr Murphy also submitted that the amended village rule had not been approved lawfully. On its face, the minutes of the meeting of 17 November 2014 raise questions as to whether the special resolution was passed lawfully. It appears that 21 residents voted for the rule amendment and 4 against. That would constitute more than 75% and therefore satisfy the requirements for a special resolution. However, Mr Murphy submitted that the returning officer was absent from the meeting. That person is listed as an apology in the minutes of the meeting. Mr Murphy submitted that the returning officer did not satisfy the definition of returning officer as contained in cl 1 of Sch 7 of the RV Regulation. That definition describes a returning officer as a resident who is not a member of the residents committee and is not standing for election to the residents committee selected by a show of hands at a meeting of the residents. Clause 7 states that the result of the vote is to be ascertained by the returning officer and that the returning officer is to count the votes. 6. In our view, the fact that the returning officer was not present at the meeting must lead to the conclusion that the vote was not counted by the returning officer. The question then arises as to the source of the information contained in the minute, namely that there were 21 votes and 4 against. Some of the votes were postal votes and a question arises as to who took responsibility for the counting of postal votes. 7. In all of the circumstances, these irregularities cannot be passed off as mere informalities. Rather, they go to heart of the effectiveness of the resolution. In our view, the minutes of the meeting of 17 November 2014 disclose that the special resolution amending village rule 4 concerning parking was not passed validly. In the Decision, the Tribunal found that the village rules were amended by the special resolution purportedly passed on 17 November 2014. In our view, that finding constitutes an error of law in that the Tribunal failed to take into account a relevant consideration (i.e. the absence of the returning officer). 8. It follows from this that Mr Murphy is entitled to an order that restrains any action in breach of village rule 4 (in the form it was in immediately prior to the purported amendment). The appropriate form of the order consistent with the Tribunal's powers in s 128 of the RV Act is to make an order in these terms: 1. 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). 1. To the extent that Mr Murphy asserted that there were other aspects required under order 1 but ignored by the Tribunal, the only matter to which our attention was drawn was that concerning the display of washing. The Operator has proposed an order (a copy of which was handed up at the hearing and marked Exhibit 4) and we propose to make an order in terms of the order proposed. The form of the order as proposed requires the Operator to restrain the breach of village rules 8(b) and 9(a). We think it appropriate to recast the order to make it consistent with our powers under s 128(c)(ii) of the RV Act to read: 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. Order 2 1. In our view, Mr Murphy's submissions with respect to proposed order 2 must be rejected. Essentially both Mr Murphy and the Operator agree that the source of funds to make up the proposed budget deficit for 2013/2014 (and perhaps some prior years as well) was the fund which came about as a consequence of the Operator offering reparations to the residents. On Mr Murphy's view, the residents are the beneficial owners of the fund and on the Operator's view, as expressed by counsel during the hearing, the ownership of the fund is a matter of some complexity and controversy. It may be a fund held on trust for the benefit of those in residence from time to time. It is not necessary for us to determine who owns the fund except to say that both sides assert that the fund is not the property of the Operator. It follows from that position (i.e. that the fund is not the property of the Operator) that the onus falls to the Operator to establish that it had the residents' authority to use the fund to finance the deficit. The Operator relied upon the meeting of 20 May 2013. 2. In our view, Mr Murphy's submissions with respect to proposed order 2 must be rejected. Essentially both Mr Murphy and the Operator agree that the source of funds to make up the proposed budget deficit for 2013/2014 (and perhaps some prior years as well) was the fund which came about as a consequence of the Operator offering reparations to the residents. On Mr Murphy's view, the residents are the beneficial owners of the fund and on the Operator's view, as expressed by counsel during the hearing, the ownership of the fund is a matter of some complexity and controversy. It may be a fund held on trust for the benefit of those in residence from time to time. It is not necessary for us to determine who owns the fund except to say that both sides assert that the fund is not the property of the Operator. It follows from that position (i.e. that the fund is not the property of the Operator) that the onus falls to the Operator to establish that it had the residents' authority to use the fund to finance the deficit. The Operator relied upon the meeting of 20 May 2013. 3. In view of the Operator's concession that the fund was not the property of the Operator, which does not appear to have been made in the proceedings below, we are of the view that the question of whether that fund may be utilised to fund deficits has not been fully considered. In particular, the impact of s 120C(1) and 120C(2)(b) of the RV Act have not been considered. Section 120C provides: 120C Making good of deficit (1) A deficit is to be made good by the operator of the retirement village. (2) Except as provided by the regulations referred to in subsection (3), an operator of a retirement village must not: (a) carry forward a deficit to a subsequent financial year, or (b) request or receive from the residents of the retirement village any special additional payments for the purpose of making good a deficit, or (c) increase or purport to increase recurrent charges payable by the residents of a retirement village in any financial year for the purpose of making good a deficit, or (d) use the whole or any part of the recurrent charges collected by the operator in a financial year to make good a deficit, or (e) use the whole or any part of the capital works fund for the retirement village to make good a deficit. (3) The regulations may prescribe circumstances in which the operator of a retirement village may: (a) increase the recurrent charges payable by the residents of a retirement village for the purpose of making good a deficit, or (b) use the whole or any part of the recurrent charges collected by the operator for the purpose of making good a deficit, or (c) carry forward a deficit to a subsequent financial year. (4) The operator of a retirement village must not charge the residents of a retirement village interest in respect of a deficit. 1. In the circumstances of what has been conceded by the Operator, the appropriate course is to make an order remitting the application 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. In our view, the parties should be free to file fresh evidence on this issue. If the parties resolve this aspect of the dispute or if Mr Murphy does not wish to proceed to take advantage of the remittal order, the Tribunal should be so advised so that steps can be taken to set aside the remittal order. Order 3 1. As recorded earlier, the parties have reached an agreement and the appeal in respect of this order is withdrawn. Order 4 1. In respect of Mr Murphy's assertion that the Decision failed to deal with his complaints concerning the retaining wall, we are of the view that Mr Murphy has not demonstrated that an order should be made. We were not taken to evidence that supported Mr Murphy's assertion that the wall was unsound. We were not taken to evidence that established that the Operator was required to keep the colour of the wall uniform. 2. In respect of the letter attributed to Bishop Comensoli, we are of the view that that letter does not justify an order being made. Although the letter may reflect a policy not consistent with the Operator's obligations under the RV Act, Mr Murphy's case was required, in our view, to have been based upon evidence of what the Operator actually did. Where there was an assertion that the Operator's actions were inconsistent with the RV Act, evidence of such inconsistent actions should have been put before the Tribunal. We accept the submissions made by counsel for the Operator to the effect that there was no evidence before the Tribunal that carpets or fixtures in any unit (including Mr Murphy's unit) need replacing. Order 5 1. In view of the concession made by the Operator during the hearing, we propose to make an order that the Operator return to Mr Murphy the sum of $219.00 representing the difference between the amount of recurrent charges Mr Murphy was charged in 2013/2014 as against the charges that he should have been charged. We do not think it is appropriate to accede to Mr Murphy's request for orders in respect of any overpayments made in the years subsequent to 2013/2014 in view of the fact that those years were not the subject of the proceedings at first instance. Order 6 1. Mr Murphy sought an order which would provide a reduction in the departure fee from 3% to 1.5% and a further reduction in the maximum relevant period from 10 years to 5 years. The maximum reduction would therefore drop from 30% to 7.5%. The basis for this proposed order was that there was an inconsistency between the amounts of the ingoing contributions disclosed in the Disclosure Statement and the amounts Mr Murphy actually paid. There is clearly, in our view, no logical connection between the remedy being sought (the reduction in the departure fee) and the effect of any inconsistency arising by the fact that the departure fee might be based upon a higher figure than that disclosed in the Disclosure Statement. Accordingly, we see no basis for the order sought. 2. Mr Murphy sought to invoke s 25 of the RV Act which permits the Tribunal to determine a dispute concerning an inconsistency between a term in the village contract with information contained in the Disclosure Statement. The term must be to the detriment of the resident (see s 25(1)). Mr Murphy might be able to argue that he should have compensation for the difference between the departure fee calculated on the figure of $550,000.00 (the maximum stated in the Disclosure Statement) as opposed to the figure which he paid for his unit namely, $560,000.00. That would amount to a maximum of 3% of $10,000.00 or $300.00. However, we were not taken to evidence which demonstrated that the information in the Disclosure Statement operated to Mr Murphy's detriment. Indeed the Disclosure Statement makes it clear that the departure fee is calculated as a percentage of the ingoing consideration which in Mr Murphy's case was higher than the figures mentioned earlier in the context of describing the ingoing contribution. In other words, Mr Murphy paid more to enter than the range disclosed in the Disclosure Statement and the departure fee is to be calculated on what was actually paid. In our view, the appeal with respect to order 6 must be refused. 3. In addition, Mr Murphy's appeal concerned the Tribunal's findings in relation to the flooring to Mr Murphy's unit. The Tribunal found that the Operator partly paid for such flooring. The Operator's counsel pointed out that this matter was agreed as a special condition in the licence agreement. Mr Murphy was unable to point to any evidence which established a basis for the order which he sought. We cannot see any error in the Tribunal's rejection of this claim. 4. We refer to Mr Murphy's request for orders concerning the identity of the owner of the land upon which the village exists. At the hearing of the appeal, the Operator's counsel tendered a title search (marked Exhibit 3) which disclosed that the registered proprietor of the relevant land is the trustee of the Roman Catholic Church for the Archdiocese of Sydney. In any event, in the document filed by Mr Murphy in which he sets out the orders which the Appeal Panel should make, there is no reference to this matter and we see no basis for making any order concerning the registered proprietor. Order 7 1. We see no error in the Tribunal's finding that it had no jurisdiction to make an order directing the Director General to investigate and report on whether the village will be able to pay departure fees from the ingoing contributions and whether the Operator had given false and misleading information. We understood Mr Murphy to rely upon the provisions of s 189(d) of the RV Act which state that the functions of the Director General include investigating and reporting on any matters or making enquiries in relation to any matters referred to the Director General by the Minister or by the Tribunal in connection with the RV Act. In our view, the Tribunal was correct in interpreting Mr Murphy's application for order 7 as beyond the Tribunal's jurisdiction. We confirm our view which is that the Tribunal is not able to direct the Director General to undertake any particular function. The Tribunal's function is limited to making a referral. 2. The question of whether the Tribunal should or should not make a referral was apparently not argued before the Tribunal and accordingly it would be inappropriate for us to consider the question of whether a referral should be made on this appeal. Order 8 1. We see no error in the Tribunal's decision to refuse to make an order that the Operator should "disregard" the body calling itself the residents committee. On the appeal Mr Murphy sought an order of a different nature, namely an order that the: Operator to be aware that the body calling itself the Vaughan Village Residents Committee is in fact a subcommittee of a non-existent residents committee and that it is a committee which is not a residents committee as contemplated by the RV Act. 1. During the appeal hearing, Mr Murphy argued that the residents committee was an advisory committee but not one which was appointed or operated in conformity with s 70 of the RV Act. Counsel for the Operator submitted that the committee was formed in conformity with s 70. We were not taken to evidence in support of either position. We are left in the position of considering the Tribunal's decision in respect of the order sought at first instance by Mr Murphy and confirm that we see no error in the Tribunal's decision in that respect. Order 9 1. Both parties have confirmed that there is no claim for costs in the proceedings below. Accordingly, there is no basis for altering the Tribunal's decision not to make an order in respect of costs. We also note that neither party seeks costs of the appeal and accordingly there will be no order with respect to the costs of the appeal. Orders 1. Based upon the reasons set out above, we propose to make the following orders: 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. 1. 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. ********** 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: 23 June 2017