Boele v Rinbac Pty Ltd

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.