Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Boele v Rinbac Pty Ltd [2014] NSWCA 451 Hearing dates: 17 November 2014 Decision date: 19 December 2014 Before: Basten JA at [1];
Sackville AJA at [57];
Rein J at [102]Decision: Summons dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: ADMINISTRATIVE LAW - appeal limited to question of law - whether error of law by Consumer, Trader and Tenancy Tribunal - whether District Court erred in failing to identify error of law by Tribunal - whether ground relied on by way of judicial review argued in District Court - whether any error of District Court involved jurisdictional error, error on face of record not being relied on
LANDLORD AND TENANT - retirement villages - termination of residence contract for breach of village contract - alleged breach by applicant in failing to occupy premises - whether breach justified termination order - whether Tribunal failed to consider whether the "circumstances of the case" warranted exercising power to terminate - Retirement Villages Act 1999 (NSW), s 134Legislation Cited: Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), ss 67, 69
District Court Act 1973 (NSW), s 176; Pt 4
Industrial Relations Act 1946 (NSW), s 179
Retirement Villages Act 1999 (NSW), ss 11, 40, 112, 113, 134, 207; Sch 4
Supreme Court Act 1970 (NSW). s 69Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27
Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244
Boele v Rinbac Pty Ltd (District Court (NSW), Gibb DCJ, 5 December 2012, unrep
Brimelow v Sharpe [2012] NSWCA 345
Cain v New South Wales Land and Housing Corporation [2014] NSWCA 28; 86 NSWLR 1
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Craig v The State of South Australia (1995) 184 CLR 163
Dranichnikov v Minister for Immigration and Multicultural Affairs [203] HCA 26; 77 ALJR 1088
Edwards v Santos Ltd [2011] HCA 8; 242 CLR 421
Edyp & Ors v Brazbuild Pty Ltd [2011] NSWCA 218
Goodwin v Commissioner of Police [2012] NSWCA 379
Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390
LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90; 203 FCR 166
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594
Minister for Immigration and Ethic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185…
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Details
- AGLC
- Boele v Rinbac Pty Ltd [2014] NSWCA 451
- Case
- [2014] NSWCA 451
- Decision Date
CaseChat Overview and Summary
This matter concerned an appeal to the Supreme Court of New South Wales from a decision of the District Court, which had itself reviewed a decision of the Consumer, Trader and Tenancy Tribunal. The dispute originated from a retirement village residence contract between Mr Boele and the original operator, Woolcott Court Pty Ltd. The Tribunal had made an order terminating Mr Boele's residence contract, which Mr Boele sought to challenge.
The central legal issues before the Supreme Court were whether the District Court had erred in law by failing to identify an error of law by the Tribunal, and whether the ground relied upon by Mr Boele in his judicial review application to the District Court had been properly argued. Specifically, the court considered whether the Tribunal had failed to take into account a significant factor in its determination to terminate the contract: the substantial financial loss Mr Boele would suffer due to the irrecoverability of a $148,000 premium paid under the lease, given the original operator's liquidation.
The Supreme Court noted that while the District Court had accepted that the Tribunal had not expressly considered Mr Boele's financial loss when applying section 134 of the *Retirement Villages Act 1999* (NSW), it had ultimately rejected the argument that this constituted an error warranting termination. However, the Supreme Court identified a "curious feature" in the litigation: the parties' common assumption that the premium was irrecoverable. The court highlighted that the lease's terms, particularly clause 3.6 and an associated Trust Deed (which was not in evidence), suggested that Mr Boele might have a claim for a refund entitlement, potentially against a successor in title to the original lessor, depending on the construction of the lease and the Trust Deed. This raised a question about the premise upon which the District Court had proceeded.
The Supreme Court dismissed Mr Boele's summons with costs.
The central legal issues before the Supreme Court were whether the District Court had erred in law by failing to identify an error of law by the Tribunal, and whether the ground relied upon by Mr Boele in his judicial review application to the District Court had been properly argued. Specifically, the court considered whether the Tribunal had failed to take into account a significant factor in its determination to terminate the contract: the substantial financial loss Mr Boele would suffer due to the irrecoverability of a $148,000 premium paid under the lease, given the original operator's liquidation.
The Supreme Court noted that while the District Court had accepted that the Tribunal had not expressly considered Mr Boele's financial loss when applying section 134 of the *Retirement Villages Act 1999* (NSW), it had ultimately rejected the argument that this constituted an error warranting termination. However, the Supreme Court identified a "curious feature" in the litigation: the parties' common assumption that the premium was irrecoverable. The court highlighted that the lease's terms, particularly clause 3.6 and an associated Trust Deed (which was not in evidence), suggested that Mr Boele might have a claim for a refund entitlement, potentially against a successor in title to the original lessor, depending on the construction of the lease and the Trust Deed. This raised a question about the premise upon which the District Court had proceeded.
The Supreme Court dismissed Mr Boele's summons with costs.
Orders
Orders of the court
Summons dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
The District Court identified the "question with respect to a matter of law" as whether Rinbac satisfied the provisions of s 134 of the RV Act: Boele v Rinbac Pty Ltd (District Court (NSW), Cogswell SC DCJ, 21 March 2014, unrep) (Primary Judgment) at [11]. The principal ground of appeal relied on by Mr Boele in his challenge to the Tribunal's decision was that the Tribunal had failed to take into account that if an order was made terminating the Lease, Mr Boele would lose the entirety of the amount he had paid to Woolcott as a "premium" pursuant to cl 3.4 of the Lease. It was common ground that Mr Boele had paid the premium of $148,000 on or about the date of the Lease. It also was common ground, both before the Tribunal and the District Court, that Mr Boele would be unable to recover that amount, given that the original operator of the retirement village, Woolcott Court Pty Ltd had been placed into liquidation on 23 July 2002. The primary Judge noted (at [22]) that the issue of Mr Boele losing the money he had paid for the Lease was "clearly a factor urged upon the Tribunal to consider" in applying s 134 of the RV Act. His Honour accepted Mr Boele's submission that the Tribunal had not expressly taken the loss into account in applying s 134. His Honour, however, rejected Mr Boele's contention that the Tribunal had erred in failing to take the loss into account on the issue of whether Mr Boele's breach of the Lease warranted its termination by a successor in title to the original lessor. His Honour reasoned as follows: This litigation, including the application to this Court, has some curious features. One concerns the parties' common assumption that the premium paid by Mr Boele on the commencement of the Lease is irrecoverable. The second concerns the artificial basis on which the application to this Court for judicial review of the Primary Judgment was conducted. Under cl 3.4 of the Lease, Mr Boele covenanted to pay to the lessor (then Woolcott) a "premium" of $148,000. The payment was to be made by a bank cheque payable to the Trustee (Winchcombe Carson Trustee Co Ltd) and was to be dealt with by the Trustee in accordance with the terms of a Trust Deed. The Trustee was not a party to the Lease and the Trust Deed was not in evidence before either the Tribunal or the District Court. Clause 3.6 of the Lease provided as follows: The calculation of Mr Boele's "refund entitlement" on termination of the lease requires reference to the Trust Deed, the terms of which are not known. Depending on the terms of the Trust Deed, the entitlement could amount to a significant proportion, if not the whole, of the premium paid to the lessor. There is a question of construction as to whether cl 3.6 of the Lease entitles Mr Boele, as the lessee, to claim the refund entitlement from the lessor on termination of the Lease, or whether he is limited to a claim against the Trustee. If the former is the correct construction of cl 3.6, it may be that Mr Boele can enforce his entitlement against a successor in title of the original lessor. This may follow from orthodox principles of tenancy law relating to covenants that touch and concern the land or, if they are not applicable, from s 40(1) of the RV Act (which permits a village contract between a resident and a former operator of a retirement village to be enforced against any operator for the time being of the village).
Ratio Decidendi
Legal Principle Established
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