Ash v Australian Retirement Homes Limited

CITATION:

Ash v Australian Retirement Homes Limited [2013] QCAT 55

PARTIES:	Eric John Ash (Applicant)
v
Australian Retirement Homes Limited (Respondent)

APPLICATION NUMBER:

OCL039-11

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Sandra G Deane, Member

DELIVERED ON:

8 February 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application for extension of time is allowed.

2. The application for renewal is dismissed.

CATCHWORDS:

Retirement Village dispute – application to renew a final decision – application for extension of time – failure to comply with decision not sufficient grounds for renewal

Queensland Civil and Administrative Tribunal Act 2009, ss 61, 132, 133, 134
Queensland Civil and Administrative Tribunal Rules 2009, r 89, Schedule Dictionary

Bruce v Sneesby [2011] QCAT 392
Wadley Properties No1 Pty Ltd v Davis (No2) [2012] QCAT 545

Avenell v Oxygen Pools Pty Ltd & Anor [2010] QCAT 284

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

Mr Ash is a former resident of a retirement village. He commenced proceedings in this Tribunal to resolve a dispute with Australian Retirement Homes Limited (‘ARH’) relating to the retirement village in which he previously resided. Those proceedings were settled by way of written agreement dated 9 December 2010, which provided that certain costs were to be referred to an ‘independent auditor to be examined and reported on’ pursuant to the terms of reference set out (‘Mediation Agreement’).
In March 2011 Mr Ash applied to the Tribunal claiming that ARH had not complied with the Mediation Agreement.
By decision dated 7 September 2011 Member Howard allowed Mr Ash’s application and ordered that ARH provide to Mr Ash ‘an audit report from an independent auditor which examines and reports on the insurance costs and off-site administrative and management costs’. The decision sets out particular matters the report was to examine and identify (‘the Decision’).
ARH sought to engage Ernst & Young to provide the report required by the Decision. Ernst & Young informed ARH that a report of the nature described in the Decision was not an audit report for the purposes of the auditing standards and proposed the report take the form of ‘Agreed-Upon Procedures’ report pursuant to Auditing Standards AUS 904.
ARH approached Mr Ash and by email dated 11 October 2011 Mr Ash agreed the Ernst & Young’s report would take the form of ‘Agreed-Upon Procedures’ report pursuant to Auditing Standards AUS 904 and expressly acknowledged that it ‘will only detail the facts revealed by the auditor’s investigations/examinations, without any opinion in relation to those facts’.[1]
[1] Attachment 5 ARH response dated 30 November 2012.
A report dated 7 November 2011 was prepared by Ernst & Young and provided to Mr Ash. Mr Ash was not satisfied with the report. He filed an application to renew the Tribunal’s decision pursuant to s 133 of the QCAT Act and filed an application to extend the time for making the application to renew, if required.
A party may apply for a renewal of the final decision if it is not possible for the decision to be complied with or there are problems with interpreting, implementing or enforcing the tribunal’s decision.
Such an application is to be made within the period stated in the rules.[2] The rules provide that such an application is to be made within 28 days after the day the party is given notice of the decision.[3]
[2] QCAT Act, s 133(3)(c)(i).
[3] Queensland Civil and Administrative Rules 2009, r 89, Schedule Dictionary.
The Tribunal may extend a time limit for the starting of a proceeding by the QCAT Act even if the time for complying has passed.[4]
[4] QCAT Act, ss 61(1)(a), 61(2).
Whilst the application to renew is out of time there is evidence that ARH was aware at an early time that Mr Ash was not satisfied with the report and was exploring his options. ARH expressly, in its response, does not take issue with the timing of the application.
In these circumstances I exercise my discretion to extend time for making the application to renew.
In an application for renewal the Tribunal is limited in the orders that it may make. They are limited to the same final decision it originally decided or any other appropriate final decision that it could have made when the proceeding was originally decided.[5]
[5] QCAT Act, s 134.
Mr Ash contends that he is experiencing difficulties in enforcing the Decision.
Specifically he contends that the report does not satisfy the terms of the Decision. He provides 8 reasons why he says it fails to comply and seeks:
a)a renewal of the Decision;
b)the order be amended to state that ‘an audit of the relevant costs must be conducted, and that the audit must cover every financial year’ for which Mr Ash was required to contribute to the relevant costs ie from 2006/2007 to 2010/2011 inclusive;
c)an order confirming that a compliant report ‘may be provided to other residents of the village, who also contributed to these costs’.
Mr Ash clearly does not seek the same order to be made again. He seeks amended and additional orders.
The nature of Mr Ash’s complaint is that ARH is refusing to provide a report which complies with the Decision.
ARH denies that the report fails to comply particularly in light of Mr Ash’s express acceptance that the report would be prepared by Ernst & Young in accordance with AUS 904 and that it would not state an opinion in relation to the facts.
The Tribunal has previously decided that a refusal of a party to comply with an order does not constitute grounds for renewal.[6] Section 132 of the QCAT Act sets out the enforcement procedure for non-monetary decisions.
[6]Bruce v Sneesby [2011] QCAT 392; Wadley Properties No1 Pty Ltd v Davis (No2) [2012] QCAT 545.
The Tribunal has granted applications for renewal in circumstances where an order that rectification work be undertaken was not complied with and could not be complied with because the first respondent/contractor had gone into liquidation and the second respondent did not hold an appropriate licence and therefore could not perform the work.[7]
[7] Avenell v Oxygen Pools Pty Ltd & Anor [2010] QCAT 284
There are no grounds of that nature relied upon.
I therefore find that there are no relevant grounds upon which I could be satisfied that the Decision should be renewed.
I make no finding as to whether the report complies or does not comply with the Decision or with AUS 904. I note that Mr Ash has provided no independent evidence that the report does not comply with AUS 904.

In the case of Ash v Australian Retirement Homes Limited, Eric John Ash sought to have a final decision of the Queensland Civil and Administrative Tribunal (QCAT) renewed and to extend the time for making the application. The dispute originated from a disagreement between Mr Ash, a former resident of a retirement village, and Australian Retirement Homes Limited (ARH) concerning the compliance with a Mediation Agreement. The original decision mandated that ARH provide an audit report on certain costs, which was to be conducted by an independent auditor. Following the preparation and delivery of a report by Ernst & Young, Mr Ash expressed dissatisfaction and filed an application for the renewal of the decision and an extension of time for this application.

The primary legal issues before the tribunal were whether the application to renew the decision was within the stipulated time frame and, if not, whether the tribunal should exercise its discretion to extend the time. Additionally, the court needed to determine if the reasons provided by Mr Ash for the renewal of the decision were valid under the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). Specifically, the tribunal had to assess if the refusal of ARH to comply with the decision constituted sufficient grounds for renewal, as per the provisions of section 133 of the QCAT Act.

The tribunal found that while the application to renew the decision was indeed out of time, the circumstances indicated that ARH had been aware of Mr Ash's dissatisfaction from an early stage. Furthermore, ARH did not contest the timing of the application. The tribunal, therefore, exercised its discretion to extend the time limit for the application to renew. However, the tribunal noted that in an application for renewal, it could only make orders that were essentially the same as the original decision or any other appropriate final decision it could have made originally. Mr Ash sought amended and additional orders rather than a repetition of the original decision, which was not permissible. The tribunal concluded that there were no grounds for renewing the decision, as the refusal of ARH to comply did not constitute sufficient grounds for renewal. The tribunal made no findings on the compliance of the report with the decision or the auditing standards, as Mr Ash had not provided independent evidence to substantiate his claims.

The tribunal allowed the application for the extension of time but dismissed the application for the renewal of the decision. Consequently, the tribunal did not amend or add to the original decision, maintaining the requirement for ARH to provide an audit report as initially ordered.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established