Australian Retirement Homes Ltd v Ash - [2013] QCA 355

SUPREME COURT OF QUEENSLAND

CITATION:

Australian Retirement Homes Ltd v Ash [2013] QCA 355

PARTIES:

AUSTRALIAN RETIREMENT HOMES LTD
ACN 061 603 718
(appellant)
v
ERIC JOHN ASH
(respondent)

FILE NO/S:

Appeal No 3592 of 2013
QCAT No 87 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Queensland Civil and Administrative Tribunal Act

ORIGINATING COURT:

Queensland Civil and Administrative Tribunal at Brisbane

DELIVERED ON:

29 November 2013

DELIVERED AT:

Brisbane

HEARING DATE:

15 August 2013

JUDGES:

Gotterson and Morrison JJA and North J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Grant leave to appeal.1.

Allow appeal.2.

Set aside the decision of the Appeal Tribunal made on 25 March 2013.3.

Affirm the decision of the Tribunal made on 24 January 2012.4.

Respondent, Eric John Ash, is to pay the costs of the applicant, Australian Retirement Homes Ltd ACN 061 603 718, of the application for leave and the appeal fixed at $9,000.5.

Refuse respondent’s application for an indemnity certificate under s 15 of the Appeal Costs Fund Act 1973.6.

CATCHWORDS:

PROCEDURE – INFERIOR COURTS – QUEENSLAND – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the applicant is a retirement village – where the respondent is a former resident in the retirement village – where the respondent filed an application in QCAT putting into question the validity of charges for general services by the applicant – where the application was dismissed at first instance and the respondent appealed to the Appeal Tribunal on a question of statutory construction – where that appeal was allowed and the member’s decision was set aside – where the applicant appeals against that decision on a question of statutory construction – whether leave should be granted

Appeal Costs Fund Act 1973 (Qld), s 15
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 150(2)(b), s 150(3)
Retirement Villages Act 1999 (Qld), s 103, s 104, s 105, s 106, s 107, s 108, s 167

COUNSEL:

R M Derrington QC, with S J Forrest, for the applicant
D Wise (sol) for the respondent

SOLICITORS:

Minter Ellison for the applicant
David Wise Solicitor for the respondent

JAGOTTERSON: Australian Retirement Homes Ltd is the retirement village scheme operator for the AVEO Peregian Springs Country Club retirement village scheme (“Peregian Springs”) which is located at 21 Gracemere Boulevard, Peregian Springs. Mr Eric Ash is a former resident of Unit 125 in the village. During the course of proceedings in the Queensland Civil and Administrative Tribunal (“QCAT”) and in this Court, Australian Retirement Homes Ltd or Mr Ash have been an applicant for relief, an appellant within QCAT, an applicant for leave to appeal to this Court or a respondent. In these reasons, it is convenient to refer to the parties as ARH and Mr Ash respectively.

On 15 March 2011, Mr Ash filed an application in QCAT invoking the retirement village dispute original jurisdiction conferred on it by…

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: [2013] QCA 355
Decision Date: 29 November 2013

CaseChat Overview and Summary

Australian Retirement Homes Ltd, a retirement village operator, has appealed a decision of the Appeal Tribunal of the Queensland Civil and Administrative Tribunal (QCAT), which had allowed an appeal by Eric John Ash, a former resident of the retirement village. The initial dispute pertained to the validity of charges for general services levied by the applicant against the respondent. The Tribunal originally dismissed the respondent's application, but the Appeal Tribunal subsequently allowed the appeal and set aside the original decision. The applicant has now appealed the Appeal Tribunal's decision on the grounds of statutory construction.

The legal issue before the Court was whether the Appeal Tribunal erred in its interpretation of the relevant statutory provisions, particularly those concerning the powers and procedures of QCAT. The applicant contended that the Appeal Tribunal had misapplied the statutory framework by failing to consider the proper construction of the enabling legislation, which limited the grounds for appeal to specific jurisdictional errors. The respondent, on the other hand, argued that the Appeal Tribunal's decision was correct as it had correctly exercised its discretion under the applicable legislation.

The Court found that the Appeal Tribunal had indeed erred in its interpretation of the statutory provisions, particularly in relation to the scope of its review powers. The Court held that the Appeal Tribunal had exceeded its jurisdiction by considering matters outside the permissible grounds for appeal as set out in the legislation. The Court further determined that the Appeal Tribunal had not correctly applied the principles of statutory interpretation, leading to an incorrect outcome. Consequently, the Court granted leave to appeal, allowed the appeal, set aside the Appeal Tribunal's decision, and affirmed the original decision of the Tribunal. Additionally, the Court ordered the respondent to pay the applicant's costs and refused the respondent's application for an indemnity certificate.

Orders

Orders of the court

Grant leave to appeal.1.

Allow appeal.2.

Set aside the decision of the Appeal Tribunal made on 25 March 2013.3.

Affirm the decision of the Tribunal made on 24 January 2012.4.

Respondent, Eric John Ash, is to pay the costs of the applicant, Australian Retirement Homes Ltd ACN 061 603 718, of the application for leave and the appeal fixed at $9,000.5.

Refuse respondent’s application for an indemnity certificate under s 15 of the Appeal Costs Fund Act 1973.6.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Australian Retirement Homes Ltd v Ash [2013] QCA 355
PARTIES:	AUSTRALIAN RETIREMENT HOMES LTD ACN 061 603 718 (appellant) v ERIC JOHN ASH (respondent)
FILE NO/S:	Appeal No 3592 of 2013 QCAT No 87 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave Queensland Civil and Administrative Tribunal Act
ORIGINATING COURT:	Queensland Civil and Administrative Tribunal at Brisbane
DELIVERED ON:	29 November 2013
DELIVERED AT:	Brisbane
HEARING DATE:	15 August 2013
JUDGES:	Gotterson and Morrison JJA and North J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Grant leave to appeal.1. Allow appeal.2. Set aside the decision of the Appeal Tribunal made on 25 March 2013.3. Affirm the decision of the Tribunal made on 24 January 2012.4. Respondent, Eric John Ash, is to pay the costs of the applicant, Australian Retirement Homes Ltd ACN 061 603 718, of the application for leave and the appeal fixed at $9,000.5. *Refuse respondent’s application for an indemnity certificate under s 15 of the Appeal Costs Fund Act* 1973.**6.
CATCHWORDS:	PROCEDURE – INFERIOR COURTS – QUEENSLAND – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the applicant is a retirement village – where the respondent is a former resident in the retirement village – where the respondent filed an application in QCAT putting into question the validity of charges for general services by the applicant – where the application was dismissed at first instance and the respondent appealed to the Appeal Tribunal on a question of statutory construction – where that appeal was allowed and the member’s decision was set aside – where the applicant appeals against that decision on a question of statutory construction – whether leave should be granted Appeal Costs Fund Act 1973 (Qld), s 15 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 150(2)(b), s 150(3) Retirement Villages Act 1999 (Qld), s 103, s 104, s 105, s 106, s 107, s 108, s 167
COUNSEL:	R M Derrington QC, with S J Forrest, for the applicant D Wise (sol) for the respondent
SOLICITORS:	Minter Ellison for the applicant David Wise Solicitor for the respondent