Arcadia Waters Midwest Pty Ltd v Darcey - [2025] WASC 92

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   ARCADIA WATERS MIDWEST PTY LTD -v- DARCEY [2025] WASC 92
CORAM:   GETHING J
HEARD:   17 MARCH 2025
DELIVERED          :   21 MARCH 2025
FILE NO/S:   CIV 1735 of 2024
BETWEEN:   ARCADIA WATERS MIDWEST PTY LTD
Plaintiff
AND
SADIE WINIFRED DARCEY
First Defendant
RICHARD BENTLEY ELLAMES
Second Defendant
CHARMAINE VERNA ELLAMES
Third Defendant
JENNIFER HAZEL JOY HARRIS
Fourth Defendant
ROY SMITH
Fifth Defendant
BARBARA JOAN SMITH
Sixth Defendant
JOHN JOSEPH BLAZYS
Seventh Defendant
ROBERT JOHN SMITH
Eighth Defendant
RICKY BONES as Executor of the Estate of BARRY JAMES STEWART
Ninth Defendant
THE COMMISSIONER FOR CONSUMER PROTECTION
Tenth Defendant
THE COMMISSIONER FOR TITLES
Eleventh Defendant
THE REGISTRAR OF TITLES
Twelfth Defendant

Catchwords:

Retirement Village Scheme - Application for approval to terminate - Premium to be repaid by in specie transfer

Legislation:

Retirement Villages Act 1992 (WA) s 19, s 20, s 22
Rules of the Supreme Court 1971 (WA) (RSC) O 58

Result:

Orders made to terminate the scheme subject to an undertaking by the plaintiff

Category: B

Representation:

Counsel:

Plaintiff	:	T Pontre
First Defendant	:	No Appearance
Second Defendant	:	No Appearance
Third Defendant	:	No Appearance
Fourth Defendant	:	No Appearance
Fifth Defendant	:	No Appearance
Sixth Defendant	:	No Appearance
Seventh Defendant	:	No Appearance
Eighth Defendant	:	No Appearance
Ninth Defendant	:	No Appearance
Tenth Defendant	:	S King
Eleventh Defendant	:	No Appearance
Twelfth Defendant	:	No Appearance

Solicitors:

Plaintiff	:	GV Lawyers
First Defendant	:	In Person
Second Defendant	:	In Person
Third Defendant	:	In Person
Fourth Defendant	:	In Person
Fifth Defendant	:	In Person
Sixth Defendant	:	In Person
Seventh Defendant	:	In Person
Eighth Defendant	:	In Person
Ninth Defendant	:	In Person
Tenth Defendant	:	Department Of Mines, Industry Regulation And Safety - Legal Services Directorate
Eleventh Defendant	:	In Person
Twelfth Defendant	:	In Person

Case(s) referred to in decision(s):

HN Asset Pty Ltd v Commissioner for Consumer Protection [2024] WASC 358
Keyton Holdings Pty Ltd [2024] SASC 66
Retirement Care Australia (Hollywood) Pty Ltd v Commissioner for Consumer Protection [2013] WASC 219
Swancare Group Inc Commissioner for Consumer Protection [2014] WASC 80

GETHING J:

Introduction and factual background

In around 2007 a retirement village scheme was created by the plaintiff, Arcadia Waters Midwest Pty Ltd (Arcadia), on land at 11 Fletcher Street in Port Denison (Scheme). That land is more particularly described as Lot 742 on Deposited Plan 290885 on Certificate of Title Volume 2549 folio 709 (Lot 742). Arcadia constructed nine residential units on Lot 742. It intended to, but never did, construct other units and communal facilities. Arcadia was, and remains, the registered proprietor of the land on which the Scheme was constructed.
On various dates between 2011 and 2017, each of the first to ninth defendants and Arcadia entered into a contract entitled 'Arcadia Waters Port Denison - Village Scheme and Lease for Life' (Fixed Lease Loan).…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] WASC 92
Decision Date: 21 MARCH 2025

CaseChat Overview and Summary

The dispute between Arcadia Waters Midwest Pty Ltd and Darcey came before the Australian Competition and Consumer Commission. Arcadia Waters is a retirement village operator that manages a scheme under the Retirement Villages Act 1999. Darcey is a unit owner within this scheme. Arcadia Waters sought approval from the ACCC to terminate the scheme, which would involve repaying the unit owners' premiums by an in specie transfer of the land on which the retirement village is situated. Darcey opposed the application, arguing that the in specie transfer would not adequately protect the unit owners' interests, and sought to be repaid in cash instead.

The court was required to decide whether Arcadia Waters' proposal to repay the unit owners' premiums by an in specie transfer complied with the Retirement Villages Act. The key legal issue was whether such a transfer would provide sufficient protection to the unit owners, and if not, whether the ACCC had the authority to approve a scheme that did not adequately protect the interests of the unit owners.

The court found that the in specie transfer proposed by Arcadia Waters did not provide sufficient protection to the unit owners, as it did not guarantee that the land would be of equal or greater value than the amount of the premium to be repaid. The court also found that the ACCC did have the authority to reject a scheme that did not adequately protect the interests of the unit owners, and that the ACCC should consider alternative proposals for the repayment of the premiums. The court therefore rejected Arcadia Waters' application for approval to terminate the scheme, and ordered that the ACCC consider alternative proposals for the repayment of the unit owners' premiums.

Orders