Bondi Beach Astra Retirement Village Pty Ltd v Hohman - [2010] NSWCA 38

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Bondi Beach Astra Retirement Village Pty Ltd v Hohman [2010] NSWCA 38

FILE NUMBER(S):
2009/00298227

HEARING DATE(S):
23 February 2010

JUDGMENT DATE:
19 March 2010

PARTIES:
Bondi Beach Astra Retirement Village Pty Ltd (Appellant)
Jean Edith Hohman as Executor of the Estate of the late Rita Doreen Borthwick (Respondent)

JUDGMENT OF:
Basten JA Macfarlan JA Young JA

LOWER COURT JURISDICTION:
Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S):
SC 30110/08

LOWER COURT JUDICIAL OFFICER:
Harrison J

LOWER COURT DATE OF DECISION:
30 April 2009

LOWER COURT MEDIUM NEUTRAL CITATION:
Bondi Beach Astra Retirement Village Pty Ltd v Jean Edith Hohman as Executor of the Estate of the late Rita Doreen Borthwick [2009] NSWSC 340

COUNSEL:
R J Brender (Appellant)
D J Fagan SC and M B Holmes (Respondent)

SOLICITORS:
Stephen Wawn & Associates (Appellant)
Manion McCosker (Respondent)

CATCHWORDS:
APPEAL- from CTTT only "with respect to a matter of law" ambit- Consumer, Trader and Tenancy Tribunal Act 2001, s 67. CONVEYANCING- options- put option to operator of retirement village to buy back freehold unit on certain events- subsequently Retirement Villages Act 1999 provides that option lapses unless grantee gives notice of intention to exercise within a defined period- time for exercise of option does not occur during defined period- whether option lapses- Retirement Villages Act 1999, s 167. PRACTICE AND PROCEDURE- undesirability of coupling proceedings for specific performance with a statutory appeal. WORDS AND PHRASES- "Decide"- "Decision"- what does the propositus need to know before he or she can make a decision on a matter. WORDS AND PHRASES- "Moves out" (of premises).

LEGISLATION CITED:
Consumer, Trader and Tenancy Tribunal Act 2001, s 67
Retirement Villages Act 1999, ss 7, 8, 128, 167
Supreme Court Act 1970, s 69

CATEGORY:
Principal judgment

CASES CITED:
Bondi Beach Astra Retirement Village Pty Ltd v Gora [2010] NSWSC 81
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Farquhar v Milstern Retirement Services Pty Ltd [2006] NSWCTTT 608
HIA Insurance Services Pty Ltd v Kostas [2009] NSWCA 292
Kirk v Industrial Relations Commission [2010] HCA 1
Maunsell v Olins [1975] AC 373
Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138; 166 LGERA 479
NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation [1956] HCA 80; 94 CLR 509
Polglaze v Veterinary Practitioners Board of NSW [2010] NSWCA 4
Smith v Collings Homes Pty Ltd [2004] NSWCA 75
The Acacia Ridge Holdings Pty Ltd v Stratis [2009] 2 Qd R 100

TEXTS CITED:

DECISION:
The appeal is dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

2009/00298227
BASTEN JA
MACFARLAN JA
YOUNG JA
Friday 19 March 2010

BONDI BEACH ASTRA RETIREMENT VILLAGE PTY LTD v HOHMAN

Judgment

BASTEN JA: In 1987 Mrs Rita Borthwick purchased a unit in a retirement village now operated by the appellant. Mrs Borthwick did not live in the unit (to use a neutral expression) from sometime in 2002 until her death on 24 December 2005.
As more fully explained by Young JA, when Mrs Borthwick purchased her unit she entered into two agreements, each of which conferred on the appellant, as operator of the retirement village, an option to repurchase the unit in specified circumstances at the price which Mrs Borthwick paid in 1987. The practical effect was to allow the operator to obtain any capital appreciation on the unit, but to let any capital depreciation be borne by the owner.
The respective options operated differentially. Thus, the option under the “Occupancy Agreement” was contained in a provision which had two purposes, namely to specify circumstances in which the occupant’s entitlement to reside at the retirement village, use the communal areas and occupy the unit should “cease and determine”. Unsurprisingly, the primary circumstances identified involve the death of the occupant or the sale or disposal of the unit: cl 7(a). Other circumstances included the owner becoming a patient of a nursing home or hospital “on a permanent basis”: cl 7(g), and the unit being “unoccupied by the occupant for a period of six (6) continuous months”: cl 7(i).
The second purpose of cl 7 was to provide that the rights conferred by cl 8 “shall arise” upon the happening of the same events. There are risks in providing for two matters within the one clause. The right granted by cl 8 was the conferral of a power allowing the appellant “to require the [owner of the unit] to transfer the unit to [the appellant]”. How that could operate in circumstances where the owner of the unit had sold or disposed of his or her interest is unclear, but not presently relevant.
The second agreement entered into by Mrs Borthwick in 1987 was referred to as “The Buy Back Deed”. It prohibited Mrs Borthwick from selling, transferring or otherwise disposing of the unit without first giving the appellant notice in writing of an intention to take such a step: cl 1(a). One month after giving notice, each party had the right by notice in writing served on the other, within a further 28 day period, to require the transfer of the unit at the nominated price to the appellant: cl 1(b).
The executor of Mrs Borthwick’s estate (the respondent) wishes to sell the unit, but does not wish to transfer it to the appellant in accordance with the terms of either deed. There was material which suggested that in December 2004 the market value of the unit was $350,000, more than triple the amount payable by the appellant under the agreements. The respondent contended that each of the “options” vested in the appellant under the agreements had lapsed and that she is now free to sell the unit to a third party, subject to the general constraints applicable to any person seeking to buy into a retirement village.
The respondent’s position depends on the operation of a provision in the Retirement Villages Act 1999 (NSW), which, relevantly for present purposes, commenced on 1 July 2000. It was not in dispute that that Act governed the operation of the two agreements, even though they had been entered into prior to its commencement. (That position appears to follow from Sch 4 of the Act.) The particular provision relied upon was s 167, the terms of which have been set out by Young JA at [86] below.
In October 2006, the respondent applied to the Consumer, Trader and Tenancy Tribunal (“the Tribunal”) requesting that each of the relevant clauses providing for “options” vested in the appellant, be declared “void” and be “set aside”.
On the application of the appellant, the Tribunal (constituted by Ms Margaret Balding, Senior Member) considered whether it had jurisdiction and power to consider the dispute and make orders of the kind sought. On 13 November 2007 the Tribunal upheld its “jurisdiction” to determine the application and no appeal has been pursued against that decision: The Estate of Rita Borthwick v Bondi Beach Astra Retirement Village Pty Ltd [2007] NSWCTTT 660.
On 7 April 2008 the matter proceeded to a hearing on the substantive issues. On 22 July 2008 the Tribunal made “orders” stating that the rights conferred under the identified clauses of the respective agreements had “lapsed” and stating that “the clauses are therefore void and are set aside”: The Estate of Rita Borthwick v Bondi Beach Astra Retirement Village Pty Ltd [2008] NSWCTTT 1160.
The appellant challenged, as a separate and subsidiary issue, the declaration that the clauses were “void” and the order setting them aside. Whether that language was appropriate or not is of no consequence if the Tribunal’s conclusion that the rights had lapsed is to stand. As I agree with Young JA that the appeal must fail, the subsidiary issue as to the form of the orders will not be considered further.
The first appeal
By a summons filed in the Common Law Division, the appellant, being dissatisfied with the decision of the Tribunal, appealed pursuant to s 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) (“the CTTT Act”). An appeal under that provision is limited to a “decision” of the Tribunal “with respect to a matter of law”: see at [87] below.
The form of the summons was problematic in a number of respects. It stated that the appellant appealed from “the whole of the decision below”, a statement which was inapt given the limited nature of the appeal. In the section headed “Appeal grounds”, apart from the first paragraph relating to jurisdiction (later abandoned), the grounds failed to identify relevant questions of law, for the most part identifying holdings of the Tribunal which were, at best, mixed questions of fact and law.
Secondly, the summons stated that it also sought orders “resolving the dispute between the parties, which orders were not within the jurisdiction of the [Tribunal]”. Once the challenge to the jurisdiction of the Tribunal was abandoned, it may have been doubtful whether any orders beyond those available under s 67(3) of the CTTT Act were pressed. However, there was at least a suggestion before this Court that an order for specific performance of the agreement and possibly an order restraining the respondent from selling the unit without complying with the terms of the agreement, were thought to have remained available to the appellant in the Court below. If correct, that would have raised a question as to whether the conferral of power on the Tribunal to determine factual issues, the resolution of which would be beyond challenge by way of statutory appeal or judicial review under s 69 of the Supreme Court Act 1970 (NSW), nevertheless left open the possibility that identical matters could be agitated in the Supreme Court in proceedings for declarations and other orders of the kind noted above. The primary judge (Harrison J) did not address any such proposition and no appeal is brought from his Honour’s failure to consider the alternative orders. It should therefore be assumed that the issues agitated below were restricted to those properly raised on the statutory appeal. On that view, no question of orders in the nature of specific performance were before this Court.
Confining attention to the statutory appeal, it is necessary to reiterate the limited scope of an appeal from the decision of a question with respect to a matter of law. This Court’s website identifies, for the assistance of parties and practitioners, decisions of the Court which have discussed the nature of the appeal, obviating the need to refer again to that line of authority. It is sufficient to note the most recent discussion in HIA Insurance Services Pty Ltd v Kostas [2009] NSWCA 292. Those authorities governed the scope of the appeal in the Common Law Division and hence in this Court. Failure to attend to the limitations on the statutory appeal resulted in submissions, both at first instance and in this Court, failing to focus on the issues within the Court’s jurisdiction.
Identifying the relevant questions with respect to matters of law
The person to whom the requirements of s 167 are directed is the operator of a retirement village “who holds an option to purchase any residential premises from a resident of the village”. It was not in dispute that the appellant was an operator of a retirement village and that Mrs Borthwick was a resident of the village. Nor was it in dispute that the unit in question constituted “residential premises”. It was further accepted that the contractual provisions relied upon each constituted “an option to purchase”. Although it was argued that s 167(1) could not operate until relevant preconditions to the exercise of an option had been satisfied, it was not suggested that the appellant was not, from the time the agreements were executed, a person who “held” a relevant option.
The purpose of s 167, those matters being satisfied, is to impose on the operator a time period (28 days), after a certain event occurs, within which the operator must take a specified step, in default of which the option “lapses”: s 167(2).
In the Tribunal, two matters were of critical importance. One was the step to be taken by the operator (the appellant); the other was identification of the event which triggered the 28 day period. These two questions were said by the appellant to be inter-related: the first required the appellant to make a decision, which it could not do unless it “knew” that a condition triggering the right to exercise the option had occurred. Whether or not that submission was correct could involve (but is not necessarily limited to) a question with respect to a matter of law.
The second matter, concerning the commencement of the period, depended on the correct identification of the date on which Mrs Borthwick permanently vacated the premises. That would clearly involve questions of fact, but might involve a question of law as to the proper construction of the words “permanently vacates”. That term was defined in s 8, relevantly for present purposes as follows:
“8 “Permanent vacation” of residential premises
For the purposes of this Act, a person is taken to have permanently vacated residential premises in a retirement village when:
…
(d)if the person owns the premises … - the person dies or moves out of the premises.”
The appellant also sought to identify a third issue, arising from an alternative in the final words of sub-s 167(1) addressing the circumstance where “the resident” has not lived in the premises. One argument appeared to be that, if the resident were Mrs Borthwick, she was not living in the premises at the date of any event which may have constituted permanent vacation of the premises. Alternatively, “the resident” for this purpose was the respondent (Mrs Borthwick’s executor), who had never lived in the premises. On either of those approaches, the 28 day period commenced when the respondent notified the appellant in writing that the premises were for sale.
Factual findings of Tribunal
There were four dates of critical importance on the case for the appellant. These were:
(a)the date on which Mrs Borthwick permanently vacated the premises, if she did so before her death;
(b) the date of her death;
(c)the date on which the appellant received notification of her death, and
(d)the date on which it gave notification of its decision to exercise the option.
The last three dates were not a matter of factual dispute in the Tribunal. Mrs Borthwick died on 24 December 2005. Notification of her death was received by the solicitors for the appellant on 4 May 2006. On 18 May 2006 the appellant’s solicitors asserted that, in a letter dated 20 December 2004, they had “provided the required notice to your client of [the appellant’s] intention to exercise its option to purchase the unit”. Despite the referral back to the earlier letter, the appellant submitted in the Tribunal that it was the letter of 18 May 2006 which constituted the relevant notification and contended that that letter had been sent within 28 days of the appellant receiving notice of Mrs Borthwick’s death.
The Tribunal noted that the appellant’s case was that Mrs Borthwick had not “moved out” of the premises prior to her death: Reasons, p 5. That was for two reasons, namely that she had left goods in the premises and had made it known “that she might return and wished that possibility to remain”. The Tribunal considered the proper construction of the term “moved out” and concluded:
“The evidence is clear that Mrs Borthwick had not ‘lived’ at the premises since 2002 when she moved in with her sister and niece at their home. From that time until her death she lived with her sister and niece, spent some time in a private hospital until she moved into a nursing home in 2004 where she lived until she died. She had changed her abode in 2002. This is sufficient in my view to permit a finding that she had moved out of the premises. This is the case regardless of what her intentions or wishes were about moving back to the premises regardless of what may have been said to the [appellant] in this regard.”
The Tribunal was unable to determine precisely when Mrs Borthwick had permanently vacated the premises in 2002, and therefore adopted a date most favourable to the appellant, namely 31 December 2002: Reasons p 6. The term “permanently vacates” is defined in s 8 of the Retirement Villages Act, which is set out at [82] below. Relevantly in the case of a person who owns the premises, the person “is taken to have permanently vacated” the premises when he or she “dies” or “moves out of the premises”: s 8(d).
First question: meaning of “permanently vacates”
The Tribunal identified as a question for decision the meaning of “moves out”, being the relevant definition of “permanently vacates” in s 8 of the Act. It stated (Reasons, p 5):
“The term, unlike so many others is not defined in the Act. I have not been able to locate a ‘legal’ definition of the term. Dictionary definitions of ‘move’ include ‘to change one’s abode’, The Shorter Oxford English Dictionary and ‘move from one residence to another’, The Macquarie Dictionary Online.”
The Tribunal clearly adopted those formulae as providing assistance in understanding the ordinary English meaning of the words “moves out”. It found, as a matter of fact, that Mrs Borthwick had not “lived” at the premises since 2002 when she “moved in” with her relatives and that she had “changed her abode”, also in 2002. The Tribunal concluded that Mrs Borthwick’s intentions or wishes in respect of returning were not determinative because it was necessary to view the facts “objectively”: pp 5 and 6.
In this Court it was contended by the respondent that the meaning of ordinary English words is a question of fact and that there was no question with respect to a matter of law to found this ground of appeal.
Whether or not there was a decision of the Tribunal with respect to a question of law is by no means easy to determine. The generally accepted proposition is that the meaning of an ordinary English word is not a question of law and that an error of law will arise only in the circumstances of application of the definition to the facts, where it can be said that the facts necessarily fall within or without the statutory term and the fact-finder has held otherwise: see authorities identified in Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138; 166 LGERA 379 at [204]. Those propositions, amongst others, were identified by the Full Court of the Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322; 43 FCR 280 at 287. However, their Honours continued in terms which demonstrate how readily the distinction sought to be drawn can be blurred (at p 288-289):
“Although the words of the statute are construed according to their ordinary English meaning, that does not mean that their application to a set of facts is simply described as the matching of that set of facts with a factual description. There is necessarily a selection process involved. The range of relationships to which the words apply for the purpose of the Act depend upon a judgment about that purpose. … In the end this is not a process of fact-finding. The facts are found. What is left is a value judgment about the range of the Act and that is a question of law.”
The High Court has questioned as “artificial, if not illusory”, the supposed distinction between the meaning of a word (a question of fact) and construction of the legislative provision (a question of law): Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; 186 CLR 389 at 396. Their Honours continued:
“The meaning attributed to individual words in a phrase ultimately dictates the effect or construction that one gives to the phrase when taken as a whole and the approach that one adopts in determining the meaning of the individual words of that phrase is bound up in the syntactical construction of the phrase in question. …
If the notions of meaning and construction are interdependent, as we think they are, then it is difficult to see how meaning is a question of fact while construction is a question of law without insisting on some qualification concerning construction that is currently absent from the law.”

The High Court identified the principle that “the determination of whether an ‘Act uses [an] expression ... in any other sense than that which they have in ordinary speech’ is always a question of law”, referring to the judgment of Kitto J in NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation [1956] HCA 80; 94 CLR 509 at 511-512.
In Maunsell v Olins [1975] AC 373 at 391, Lord Simon of Glaisdale noted that “[s]tatutory language, like all language, is capable of an almost infinite gradation of ‘register’ – ie, it will be used at the semantic level appropriate to the subject matter and to the audience addressed …. It is the duty of a court of construction to tune in to such register and so to interpret the statutory language as to give to it the primary meaning which is appropriate in that register ….” Given such statements of principle, it may well be a rare case in which statutory language can be said to require the application of the ordinary English meaning of the words. In many, if not most, cases language will be construed by reference to its context and the legislative purpose which it serves. These considerations will give colour, if not impose constraints, on the ordinary meaning of the words.
Although the distinction between a question of fact and a question of law is difficult to apply in the context of statutory construction, it is clear that, at least in considering the scope of an appeal provision, some such distinction must be drawn and that not all questions as to the meaning and operation of statutory provision should be treated as questions of law. To take such a step would be to remove significant areas of discretion from tribunals which have been given the task by Parliament of making decisions, often involving evaluative judgments, in particular categories of case. The possibility that tribunals may on occasion abuse their powers cannot provide a basis for disregarding the intention of Parliament to protect their decisions from some forms of review. Superior courts are apt to place greater weight on maintaining high standards of impartial justice and less weight on the benefits of accessibility, speedy final determination and cheap procedures, which are among the benefits expected of specialist tribunals. (Of course, different characterisations may be appropriate in relation to different bodies: see Kirk v Industrial Relations Commission [2010] HCA 1 at [122] (Heydon J).)
The discussion in the reasons of the Tribunal, reflected in the discussion in this Court, illustrates the nature of the exercise of interpretation being under taken. Thus, the Tribunal noted (p 5):
“It was submitted that the reference to moving out cannot be given such a broad construction [as] to allow it to apply in these circumstances. To do so would mean that someone would be taken to have moved out, whether it was temporary or permanent, whether or not the operator was told, and whether or not they intended or wished to return.”
It was clear that the Tribunal was required to choose between the alternatives proposed. Moving out temporarily was an unlikely construction of the statutory term, which itself formed part of the definition of the phrase “permanently vacates”. Knowledge of the operator of the village was rejected as an element of the definition, because neither the ordinary meaning of the term defined, nor its statutory context, suggested such a requirement. Subjective expressions of intention may not have been entirely irrelevant, but the Tribunal placed weight on the objective facts, namely that Mrs Borthwick never did return during her lifetime, nor did the evidence demonstrate that it was a realistic possibility after 2002.
Whether these matters demonstrate a process of legal construction is uncertain. The first certainly relies upon the very term to which the statutory definition applies. The other considerations may be aspects of the ordinary English usage, when applied to an aged person living in her own unit in a retirement village, rather than, for example, a young adult moving out of the family home. Further, the Tribunal noted an earlier decision in which it had held that the Act “distinguishes between vacant possession and the fact of permanent vacation, noting that they are not the same thing and that a person can permanently vacate premises without having given vacant possession”: at p 5, referring to the decision in Farquhar v Milstern Retirement Services Pty Limited [2006] NSWCTTT 608. The distinction is entirely appropriate, mirroring the distinction between possession (a legal concept) and occupation (a factual concept).
It was open to the Tribunal to conclude that a resident might permanently vacate, in the sense of ceasing to physically occupy, a unit which she owned whilst hoping to return and leaving some possessions in the unit and continuing to pay levies in respect of it. If the identification of permanently vacating involved an application of ordinary English language, the factual conclusion was well within the scope of findings reasonably available to the Tribunal. If the reasoning involved a legal question of construction, there was no basis for concluding that the Tribunal adopted an interpretation which was erroneous in law. Accordingly that ground of challenge must be rejected.
Operation of s 167: circumstances for exercise of option not known to have arisen
The appellant contended that s 167 could not operate except in circumstances where the holder of the option was aware that the circumstances for its exercise had been satisfied. That submission was undoubtedly made to the Tribunal and was rejected in the following passage (p 6):
“The [appellant] submits that the reference to ‘decide’ and ‘decision’ means that the village operator must know that the time of the exercise of the option has come. Clearly they would have to have some knowledge of the happening of the event in order to exercise the option, however how they gain that knowledge is not something I am required to address in determining the matter before me. The effect of s 167 is to fix a time by which notice must be given which runs from one of the events specified in the section, in this case when the resident permanently vacates the premises. The section does not make any reference to the state of knowledge of the village operator of such an event.”
It may be accepted that this was a decision with respect to a question of law, and is open to be challenged by the dissatisfied appellant. However, the challenge is not made good. Indeed, the Tribunal appears to have accepted a misreading, favourable to the appellant, of s 167 which was repeated on the appeal. What must be provided by way of notification to the resident is a decision to exercise or not to exercise the option. Implicitly, the section requires that the operator make such a decision in order to keep the option alive. However, the section says nothing about the actual exercise of the option, nor indeed whether time for it to be exercised has arisen. Nor does the section indicate the effect of a notification once given; it is concerned solely with the effect of failure to give the notification within the prescribed period, which is the loss of the right conferred by the option. A number of questions can be envisaged which are simply not addressed by the section, such as - the effect of giving a notification not to exercise the option, but then seeking to do so in accordance with the contractual entitlements when the time arises; the effect of notification of intention to exercise the option, which is not effected when the time arises; whether a notification can be changed or varied by a later notification, and whether a notification can be conditional.
Once it is accepted that the section operates according to its terms and not according to the contractual terms, the complaint of lack of knowledge of the fact that the occasion to exercise the option has arisen falls away.
That this is the correct interpretation of the section obtains some support from the statement that the section has effect “despite any term of the option”: s 167(3).
Operation of s 167: knowledge of permanent vacation
A separate question might arise as to whether the section impliedly requires that the operator be aware of the fact that the resident has permanently vacated the premises and the date on which that occurred.
This submission obtains more support from the statutory scheme than did the preceding submission. The operator faced with the requirements of s 167 has a period of only 28 days in which to make a decision and give notification, in circumstances where the trigger for the commencement of the period may not be ascertainable with any degree of certainty at the time it occurs. For example, a resident who leaves on a two week holiday would not be said to have permanently vacated the premises; however, if she suffers an injury on the holiday, there may be a question as to whether she will be able to return or will be required to transfer her place of residence to a nursing home. It may be said that she permanently vacates the premises when that decision is made. Unfortunately, there may be no clear decision, but rather the accommodation of circumstances as they arise or as their significance becomes apparent. A factual finding as to when the person permanently vacated the premises may be easier to make in retrospect than it would have been at the time. Further, as the appellant submits, the operator will not be in a position to make an objective assessment unless it has knowledge of the relevant circumstances.
The appellant contends that the section should be given a construction which accords with commercial reality. It cannot have been intended to require an operator to give such notices, either on a regular basis, or in circumstances where the situation is unclear or unknown to the operator, merely to protect its position. In effect, the construction sought is that the period only commences when it appears (or, perhaps, should reasonably appear) to the operator, on the basis of information available to it, that the resident has permanently vacated the premises.
That construction may obtain some support from the words in parentheses, which deal with the situation where the resident “has not lived in the premises”, providing that the period only commences after the resident notifies the operator that the premises are for sale. However, the construction argument cuts both ways. In favour of the operator, it depends on notice of the relevant circumstance, but in favour of the resident, similar language is not adopted where the resident has lived in the premises.
This complaint need not be resolved because it is not available to the appellant in this Court. The grounds of appeal in the proceedings before Harrison J were set out by his Honour at [27] and have been restated at [91] below. This argument was not amongst the grounds of appeal relied upon. Rather, the grounds of appeal in this Court focused on the question of “the state of knowledge of the option holder as to information necessary before the option could be available to be exercised”: see ground 4 (and also ground 3).
It may have been open to the appellant to raise such a ground on the basis that the Tribunal had expressly held that s 167 fixes a time which runs from one of the “events” specified in the section, but makes no reference to the state of knowledge of the village operator “of such an event”. However, the argument before the Tribunal in that respect appears to have focused solely upon the date of Mrs Borthwick’s death and the date on which the appellant was informed of that fact. No case seems to have been presented on the basis of a possible finding that Mrs Borthwick had moved out in 2002. There may have been a number of reasons for that omission. The first might be the reliance placed upon the letter of 18 May 2006 containing the notification of intention to exercise the option. If Mrs Borthwick had permanently vacated the premises in 2002, it would have been extraordinarily difficult for the appellant to demonstrate that it only knew of the relevant circumstances in April 2006. It had communicated a conditional intention to exercise the option on 20 December 2004. On the other hand, if it had relied upon that letter as notification of the relevant intention, there appears to have been no material which would have demonstrated that it learned of Mrs Borthwick’s circumstances in 2002, only on or after 18 November 2004. Accordingly, given the Tribunal’s finding of permanent vacation no later than 31 December 2002, the question of law did not arise on the facts and does not need to be resolved in these proceedings.
Operation of s 167: executor not resident
The appellants sought to argue that the respondent fell within the definition of “resident”, because the definition of “resident” in s 4 included “a former occupant of the retirement village”, and the definition of “former occupant” included a person who had permanently vacated the village and the executor of such a person. The respondent, as Mrs Borthwick’s executor, fell within the terms of the words in parentheses in s 167, because she had never lived in the village: appeal Tcpt, 23/02/10, p 10.
There were a number of difficulties with this submission. It is sufficient to note two. First, counsel for the appellant accepted that whilst the definition of permanently vacating premises included both moving out and death, the relevant alternative would be moving out, if that had occurred during the resident’s lifetime: Tcpt, p 12 (40). If, as the Tribunal held, Mrs Borthwick had permanently vacated the premises during her lifetime, the situation of her executor is irrelevant. Secondly, and perhaps because of the factual finding, no such point of construction was decided by the Tribunal. Either of these reasons is sufficient to require that the submission be rejected.
Conclusion
It has been possible to glean from the decision of the Tribunal, the grounds of appeal set out in the summons and the grounds in the notice of appeal, decisions with respect to questions of law which could properly form the basis of the appeal to this Court. With one possible exception, which need not be resolved, the appellant has failed to make good its case. Accordingly, the appeal should be dismissed and the appellant ordered to pay the respondent’s costs in this Court.
MACFARLAN JA: I agree with both Basten JA and Young JA.
YOUNG JA: This is a second appeal from a determination of the Consumer Trader and Tenancy Tribunal (the CTTT) which determined that the present appellant was not entitled to buy back the interest in a retirement unit owned by the respondent as executrix of her sister, the late Rita Borthwick.
The initial appeal was heard by Harrison J who dismissed it for reasons he then gave [2009] NSWSC 340.
The agreed facts are that, on 13 October 1987, Mrs Borthwick contracted to purchase a retirement unit in a complex now operated by the appellant.
On 18 December 1987, at about the time of completion of the purchase, Mrs Borthwick entered into two separate agreements with the appellant, one designated an “Occupancy Agreement” and the other a “Buyback Agreement”.
Each of those agreements purported to vest in the appellant an option to purchase Mrs Borthwick’s unit, the options arising at different points of time. I will refer to these as the “Occupancy Option” and the “Buyback Option”.
The Occupancy Agreement in clause 7 contained a series of events, the happening of any one would mean that the right of occupancy would cease. The nominated events included:
(a)(i) if the Occupant shall die;
(a)(ii) if the Proprietor sells or disposes of any interest in the Unit;
(g) If the Occupant … shall become a patient … of a nursing home or hospital on a permanent basis as to which the certificate of two (2) legally qualified medical practitioners shall be conclusive; …
Clause 8 then provided:
(a) Upon the happening of any of the events referred to in Clause 7 hereof the [appellant] shall have the option at any time thereafter by notice in writing (hereinafter called “the Default Buyback Notice”) served upon the Proprietor to require the Proprietor to transfer the Unit to the [appellant] or its nominee for Ninety Five thousand ($95,000.00) dollars or such lesser amount as determined by the provisions of the Buy Back Deed …
The Occupancy Option was thus to arise on Mrs Borthwick’s death or her disposing of an interest in the unit or on her becoming a permanent resident in a nursing home and on various other events.
Literally, the Occupancy Option could be exercised at any time after the event occurred. Whether this can be validly specified in an option is debateable; see eg the discussion by Chesterman JA in The Acacia Ridge Holdings Pty Ltd v Stratis [2009] 2 Qd R 100, but there is no need to explore that matter here.
Clause 1 of the Buyback Agreement provides as follows:
“The proprietor shall not sell, transfer or otherwise dispose of his unit otherwise than pursuant to this Deed and the following procedures shall apply to such a sale or transfer:..”
The Agreement then sets out the procedure:
(a) The Proprietor shall give to the [appellant] one month’s notice in writing of his intention to sell, transfer or otherwise dispose of his unit. Such notice once given shall not be withdrawn or revoked without the consent in writing of the [appellant]
(b) Upon the expiration of the said period of one month referred to in Clause 1 (a) the Proprietor or the [appellant] shall have the option by notice in writing (hereinafter called “the Buyback Notice”) served upon the other no later than a further twenty eight (28) days thereafter to require the Transfer by the Proprietor to the [appellant] or its nominee of the unit for the sum of Ninety Five Thousand ($95,000.00) or such reduced amount as provided for in Condition 7 hereof whereupon the following terms and conditions shall apply:
(i)
…
(ee) within fourteen (14) days of the service of the Buyback Notice the parties shall exchange formal written Agreements containing the above terms and conditions.
The Buyback Option was thus activated one calendar month after the resident gave a notice of intention to sell and was to be exercised within 28 days thereafter.
Mrs Borthwick quit personal residence in the unit by December 2002 though many, perhaps most, of her possessions remained and indeed still remain therein. However, the occupation fees were all duly paid in respect thereof.
In June 2004 the appellant’s solicitors wrote to the deceased and asked her to contact them as to the Buyback Agreement and Occupancy Agreement. This request was answered by the deceased’s niece who told the solicitors that whilst the deceased was not then living in the unit, she had promised her that she could move back in to it and that was what she wanted to do.
On 20 December 2004 the appellant’s solicitors wrote to the deceased’s niece suggesting that the right to buyback had arisen. It noted that the unit probably had a current value of $350,000 and offered to release its right of buyback for $250,000.
On 21 January 2005, the respondent’s solicitor wrote to the appellant’s solicitor confirming that the deceased had been a permanent patient of a nursing home for more than 18 months and claiming that, because of s 167 of the Retirement Villages Act 1999 the right to exercise the “an option” was denied.
The appellant says that it never received that letter. The primary judge’s reasons seem to accept that it was sent and received.
The deceased never moved back into the unit and died on 24 December 2005.
On 4 May 2006 the same solicitors now acting for the executrix informed the appellant’s solicitors that as its option had lapsed, the executrix intended to sell the unit.
On 18 May 2006, the appellant’s solicitors replied in a letter which clearly indicated an intention to exercise an option. About the same time the appellant lodged a caveat over the property to protect its alleged rights.

Further correspondence then took place between the solicitors as to the relevance of s 8 of the Retirement Villages Act.
On 25 October 2006, the executrix applied to the CTTT for orders declaring void what were described as “sub-clauses 1(b) and 1(c)” of the Buyback Agreement and cl 8 of the Occupancy Agreement.
The application came on before Senior Member Margaret Balding on 4 October 2007. The issue on that occasion was whether the CTTT had jurisdiction to determine the application. On 13 November 2007 for reasons she then gave, Ms Balding found that the CTTT did have the requisite jurisdiction.
The hearing “on the merits” took place before Ms Balding on 7 April 2008. The decision was reserved and delivered on 22 July 2008.
The CTTT made the following Orders:
(a) The rights conferred by sub clauses 1(b) and 1(c) of the Deed dated 18 December 1987, the buy back deed made between Bondi Beach Astra Retirement Village Pty Ltd and Rita Borthwick have lapsed, the clauses are therefore void and are set aside.
(b) The rights conferred by clause 8 of the Deed dated 18 December 1987 the occupancy agreement made between Bondi Beach Astra Retirement Village Pty Ltd and Rita Borthwick have lapsed, the clause is therefore void and is set aside.
The appellant then not only appealed against those orders, but also conjoined an application for an order for specific performance to compel the sale to it of the unit in question for $95,000.
The appeal was heard by Harrison J who dismissed it. Hence the present appeal.
On the appeal, Mr R J Brender appeared for the appellant and Mr D J Fagan SC and Mr M B Holmes appeared for the respondent.
I have already set out the salient facts. It is now necessary to set out the terms of the Retirement Villages Act 1999 which affect the appeal.
Section 7 of the Act contains a definition of “’owner’ of residential premises” which includes the person who is the registered proprietor of the premises.
There is no doubt that the appellant is within the term “operator” and the respondent within the term “resident” or “owner” as those terms are used in the legislation.
Section 8 is headed “’Permanent vacation’ of residential premises” and provides:
For the purposes of this Act, a person is taken to have “permanently vacated” residential premises in a retirement village when:
o(a) the person (or another person on behalf of the person) delivers up vacant possession of the person’s residential premises to the operator of the village following the person’s vacation of the premises, or
o(b) the executor or administrator of the person’s estate delivers up vacant possession of the person’s residential premises to the operator of the village following the person’s death, or
o(c) the Tribunal makes an order under section 143 declaring that the person’s residential premises were abandoned by the person (and the person is taken to have permanently vacated the premises on the day specified in the order), or
o(d) if the person owns the premises or is taken to be a resident of the premises by the operation of section 4 (2) or is taken to be an owner because of section 150 (1) (b) — the person dies or moves out of the premises.
The applicable provision is (d) and a matter of much debate in the case is the meaning of the words “moves out”.
Mr Brender submitted that with respect to the alternatives specified in (d), the sensible construction was that only the first event in time applies. Thus, if a person moves out of the unit and later dies, one only looks to the date of moving out.
Section 128(1) confers authority on the CTTT on application of a resident or an operator to set aside a provision of a village contract that conflicts with the Act or Regulations. Section 128(2) makes it clear that s 128(1) does not limit the orders that the CTTT may make under the Act. “Village Contract” under s 4 would include a contract conferring a right of residence.
I should set out s 167 in full:
167 Options
o     (1) An operator of a retirement village who holds an option to purchase any residential premises from a resident of the village must decide whether or not to exercise the option, and must give the resident written notification of that decision, no later than 28 days after the resident permanently vacates the premises (or, if the resident has not lived in the premises, 28 days after the resident notifies the operator in writing that the premises are for sale).
o     (2) If the operator does not give the notification required by subsection (1) within the time allowed by that subsection, the option lapses.
o     (3) This section has effect despite any term of the option.
There is only a limited right of appeal from the CTTT. Section 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 (the CTTT Act) provides relevantly as follows:
67 Appeal against decision of Tribunal with respect to matter of law
(1) If, in respect of any proceedings, the Tribunal decides a question with respect to a matter of law, a party in the proceedings who is dissatisfied with the decision may, subject to this section, appeal to the District Court against the decision.
(2) An appeal is to be made in accordance with the rules of the District Court. The rules of the District Court may provide that an appeal (or such classes of appeal as may be specified in the rules) may be made only with the leave of the court.
(3) After deciding the question the subject of such an appeal, the District Court may, unless it affirms the decision of the Tribunal on the question:
o (a) make such order in relation to the proceedings in which the question arose as, in its opinion, should have been made by the Tribunal, or
o (b) remit its decision on the question to the Tribunal and order a rehearing of the proceedings by the Tribunal.
Because of amendments to the legislation, the appeal was originally filed in the Supreme Court, remitted to the District Court then removed back into the Supreme Court. This needs merely to be stated: it has no significance.
It should be noted that the criterion in s 67 of the CTTT Act is that the question must be “with respect to a matter of law”. In Smith v Collings Homes Pty Ltd [2004] NSWCA 75 at [23], Mason P said:
[23] This provision does not state that the appellate jurisdiction is engaged merely because the appeal involves a question of law or an assertion of error of law on the Tribunal's part. It seems to me that it is much narrower, although it is ultimately unnecessary to express concluded views on the matter.
Handley JA agreed and said at [60]-[61] that s 67(1) of the CTTT Act
[60] provides for a more restricted right of appeal on the question of law for the Supreme Court than is ordinarily provided for in the State statutes. It is arguable that the right of appeal extends to legal decisions where such a decision was necessarily made by the Tribunal but is not apparent on the face of its decision.
[61] It does seem clear, on any view, that the section prevents a new point of law being taken for the first time on appeal.
The appellant relied on four grounds of appeal before Harrison J. These were grounds 3-6, grounds 1 and 2 having been abandoned. They were as follows:
(3) The Tribunal erred in holding that the plaintiff had not validly exercised its option to purchase the unit in accordance with the Buy Back Agreement by way of notice dated 18 May 2006 to the solicitors for the defendant in response to the defendant’s intention to sell the unit dated 4 May 2006.
(4) The Tribunal erred in finding that the deceased “moved out” of the unit in 2002 in circumstances where her goods remained in the unit.
[This ground continued by asserting that representations were made by the holder of her power of attorney on her behalf that she might return and wished that possibility to remain. Harrison J treated that aspect under Ground 6 to which it is for all practical terms identical.]
(5) The Tribunal made an error of law in finding that the plaintiff had not validly exercised its option granted by the Occupancy Deed to purchase the unit as required by s 167 of the Act in circumstances where:
o (i) The plaintiff was notified of the death of the deceased and the grant of probate, on 4 May 2006.
o (ii) Notice of the plaintiff’s intention to exercise its option to purchase the unit was provided to the estate of the deceased within 28 days of the grant of probate of the estate, and within 28 days of a decision to exercise the option becoming possible.
(6) The Tribunal made an error of law in finding that the defendant was not estopped from relying upon the invalidity of the option.
It can be seen that ground 4 goes to the question of what is meant by a resident “‘moving out”, ground 3 focuses on the Buyback Option and ground 5 on the Occupancy Option.
Harrison J found ground 6 against the appellant. The appeal against that finding was abandoned before us so there is no need to further canvass that matter.
The transcript of the discussion before the primary judge shows that there was passing reference to whether specific performance ought to be granted should the appellant succeed. There was at least an understanding that that matter should be postponed. However, in the event, the appellant’s summons, which included a claim for specific performance, was merely dismissed.
It is unusual, to say the least, to combine a statutory appeal with an application in equity to obtain specific performance. Perhaps it gels with the modern idea of dealing with all problems between the parties in the one set of proceedings, but it does cause procedural problems.
The notice of appeal to this Court continues to seek such an order. Mr Brender submits that if he otherwise succeeds this issue should be remitted.
In the circumstances it is unnecessary to take the matter further. However, it is clear that, even if Mr Brender should succeed on the appeal, it by no means follows that the appellant would obtain an order for specific performance. Some of the reasons for this were expressed by Bryson AJ in Bondi Beach Astra Retirement Village Pty Ltd v Gora [2010] NSWSC 81, a decision on very similar documentation.
Before dealing with the way the primary judge dealt with grounds 3, 4 and 5, it bears stating again that an appeal under s 67 of the CTTT Act cannot succeed if the point sought to be argued was not taken before the CTTT: Smith v Collings Homes Pty Ltd [2004] NSWCA 75 at [61].
There is considerable doubt in my mind as to whether all the matters which Mr Brender seeks to argue really were matters which Ms Balding was asked to assess. However, as to examine this matter in depth would be futile in the present case, I will merely flag the general principle.
The primary judge treated ground 4 as a question of fact. He said that that fact had been determined against the appellant by the CTTT adversely to the appellant and there was no right to review that finding.
In this Court, the appellant says that the primary judge should have made the distinction between the question of law as to what was the true interpretation of permanent vacation in s 167 and only after a determination had been made on that matter if the CTTT had reached the correct interpretation would its decision on the facts stand.
Counsel cited to us various authorities on what is a question of law. It is unnecessary to note many cases as the result is clear.
In Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389, 394-5, the High Court discussed the problems involved in the sometimes vital distinction between decisions on questions of fact and decisions on questions of law. The court reviewed the five propositions on the subject found in the decision of the Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, 287. This Court recently reviewed these questions in Polglaze v Veterinary Practitioners Board of NSW [2010] NSWCA 4.
As noted earlier, the term “permanently vacated” is defined in s 8 as meaning the occasion when the resident dies or moves out of the unit. Perhaps it is a misuse of language to call this a definition: it is really a provision deeming the resident to have permanently vacated her unit.
The statute also uses the words “moved out” in s 151(1A) where the term is used in contradistinction to a person who has a temporary absence from the village.
The CTTT took the view that the words “moves out” were to be dealt with as common English words and applied the facts of this case to those words as dealt with in dictionaries.
It may be that this step involved a question of law. However, if it did, it was not the subject of a notice of appeal.
The decision on whether Mrs Borthwick had moved out was a decision applying the facts of the case to what had been found to be an ordinary English expression. That decision was a decision on a question of fact.
“Moves out” is not ordinarily a technical expression: it is an ordinary English language term. It is true that it has ambulatory operation. An adult child may “move out” of home into a home unit even though he or she leaves behind in the family home a host of possessions. On the other hand, a person who is seconded to a position interstate for six months may establish a home in that other State for those six months, but would not be considered to have “moved out” of his or her local house.
In particular, the fact that the deceased left her goods in the unit and her family continued to pay the occupation fees are just factors to be considered when reaching the ultimate decision of fact; they are not disqualifiers from reaching the view that there was a permanent vacation in 2002.
Thus the primary judge’s determination of ground 4 before him was correct.
As to ground 3, the problem arose because the Buyback Agreement made in 1987 did not dovetail with the provisions for options later made by the Act of 1999.
The Buyback Agreement provided that the appellant’s right arose on the happening of events which are unrelated to permanent vacation of a unit. The question that the CTTT and Harrison J faced was whether s 167 caught the option in the Buyback Agreement.
This question was answered unfavourably to the appellant.
As to this, the primary judge said at [48]:
It seems to me that the terms of s 167 are wide enough to be, and are, engaged as a matter of fact in the present case. This is discussed in more detail below, but the literal terms of the section are met and the section appears to operate without qualification. This is emphasised by the terms of s 167(3). The plaintiff held an option contained in the Buy Back Deed and even if it had not otherwise arisen for exercise by the plaintiff when the deceased permanently vacated the unit, the plaintiff was required to comply with the terms of s 167(1) and it did not do so. The option therefore lapsed.
The primary judge continued at [52]:
[52] The terms of s 167 required the plaintiff to decide whether or not to exercise that option and to give notice to the deceased of that decision no later than 28 days after the deceased had vacated the premises. On the Tribunal’s finding, that should have occurred no later than 28 days following 31 December 2002. That did not happen and the Tribunal concluded in accordance with s 167(2) that the option lapsed.
The appellant challenges this finding. It submits that the purpose of the legislation was to require an operator which was in possession of an option to purchase to exercise that right within a strict time limit or not at all. It has no operation at all over an option, entered into before the legislation was enacted, which is still inchoate at the time of permanent vacation. The situation is simply one not covered by the legislation.
The primary judge also found against the appellant on ground 5. I will set out in full his brief reasoning on the point.
[53] The burden of the plaintiff’s complaint about that conclusion is encapsulated within the terms of the fifth ground of appeal. That is to say, the plaintiff appears to argue that it makes no sense to apply the literal terms of s 167 to the facts of this case because even though the plaintiff had an option under the Occupancy Deed to purchase the deceased’s unit as anticipated by the section, it had not come into effect because she had neither died nor become a patient of a nursing home on a permanent basis. The terms of the option in the Occupancy Deed do not speak about the deceased permanently vacating the premises in the way that s 167 does. According to this argument, the section does not apply to the plaintiff’s option in the first place, and the events of 2004 and following, such as the notification of the death of the deceased and the grant of probate on 4 May 2006, become the relevant events, rather than the events in the 28 days following 31 December 2002, in the second place.
[54] The plaintiff’s written submissions included the following:
The evident purpose of s 167 is to give comfort to the resident that the [plaintiff] will not delay its decision about whether or not to exercise an option for a long time after cessation of occupation, and hence gives the resident some certainty that when she no longer wishes to reside in the village she will know quickly whether she needs to start the sale process or whether the [plaintiff] will be exercising the option. That is sensible in the case of an option that arises upon the resident vacating, like the Occupancy Agreement which conditions the option on the cessation of the right to reside (see clauses 7 and 8). The words of the section include “no later than 28 days after the resident permanently vacates”.
[55] The facts as found by the Tribunal, however, included that the deceased permanently vacated the unit. Those are also the words that trigger the operation of the section. The deceased was not required by the express terms of s 167 to give notice of that fact. Additionally, the implication is that she did not need to do so inasmuch as the section specifically refers to the giving of notice in limited circumstances that do not presently apply. It is not as if the section did not contemplate the giving of notice to the plaintiff in some circumstances. It clearly did not require the giving of notice to the plaintiff in the present circumstances. The Tribunal was correct in my opinion to observe that the “section does not make any reference to the state of knowledge of the village operator of such an event” — that is, when the deceased may have permanently vacated the unit.
[56] The plaintiff submitted that the words “decide” and “decision” in s 167(1) contemplated the receipt by the plaintiff of knowledge or information upon or with the benefit of which the relevant decision might be made, even if there was no requirement for the deceased specifically to provide it by notice. In this case that would not be until the permanent vacation of the unit by the deceased came to the attention of the plaintiff in some way. For the reasons dealt with in the preceding paragraph I disagree with that submission. The section does not say so and it does not follow as a matter of necessary implication. I consider that the paragraph of the Tribunal’s decision cited above containing the following extract, and that extract in particular, contains the proper emphasis:
The effect of s 167 is to fix a time by which notice must be given which runs from one of the events specified in the section, in this case when the resident permanently vacates the premises. The section does not make any reference to the state of knowledge of the village operator of such an event.
[57] The plaintiff’s fifth ground of appeal ignores the fact that the Tribunal decided that the plaintiff lost its right to exercise the option contained in the Occupancy Deed in early 2003, or within 28 days of the deceased having permanently vacated the unit. The events of later years to which the plaintiff seeks to draw attention are beside the point. It is also in my opinion irrelevant that s 167 may operate to require the plaintiff to exercise its option in circumstances other than, or even at some time much earlier than, those that condition the operation of the right to exercise the option in the Occupancy Deed. By virtue of s 167(3), the section has effect “despite any term of the option”. For whatever reason, the section obliges the holder of an option of the type in fact held by the plaintiff to exercise it within 28 days of the deceased permanently vacating the unit. Indeed, counsel for the plaintiff conceded, properly in my view, that s 167(1) on its face quite literally applied to any option held by the plaintiff to purchase the unit from the deceased contained in any agreement. There is no issue that as a question of fact the plaintiff did not exercise an option within 28 days of 31 December 2002. I am not satisfied that the Tribunal made an error of law in holding that s 167 operated in this way.

The notice of appeal to this Court contained 6 grounds, the last two have been abandoned, leaving four for consideration.
The first two grounds of appeal to this Court challenge the primary judge’s view that the determination of “moves out” was a question of fact. I have already covered this.
Grounds 3 and 4 are, in summary, as follows:
3. The primary judge erred in finding as a matter of law s 167 could apply to an option that has not become exercisable according to its terms.
4. The primary judge erred in finding as a matter of law that s 167 fixed a time for exercise of an option regardless of the state of knowledge of the option holder.
A supplementary submission was that the Court should rule that, in any event, the CTTT’s order exceeded what it found on the facts. All that it found was that the option had lapsed: there was no call to make a declaration that it was void.
The way in which Mr Brender put his oral submissions was that there were three points where the primary judge erred. These were:
(a)          His finding re “moves out”;
(b)          His treatment of the word “decide”;
(c)          His treatment of the Buyback Option.
I do not need to say anything more about (a).
Mr Brender submits that one cannot make a decision unless one has the material on which a rational decision can be made. If one has to make a decision as to whether or not to exercise an option, one at least needs to know that the time has arrived for the exercise of the option. In the instant case, the appellant did not know whether Mrs Borthwick had permanently vacated her unit or even that she had died.
The appellant says that the primary judge too easily dismissed the argument on the significance of the word “decide”. It says that it is nonsense to say that a person must make a decision on a point when that person cannot have the material on which to make the decision.
It is inappropriate to stress the semantic significance of one word in a section. The section as a whole must be considered.
It is true that the holders of options entered into before the legislation came into force, which cannot be exercised until after the resident permanently vacates, are placed in an awkward position. However, there is nothing to prevent such person from communicating within the 28 days after permanent vacation an intention to exercise the option at the appropriate time. All that s 167 requires is that the grantee of the option make a decision as to whether or not it will exercise the option. This is not necessarily the same as exercising the option as a matter of contract.
Again, the argument that the operator may not know if the resident has “moved out” holds little attraction. The legislation envisages that the “Operator” as defined in the legislation will not just be an absentee landlord and, in any event, a prudent person would give a notice whenever it suspected that the resident had moved out, perhaps with an indication that it might be willing to release that right.
In my view the word “decide” is of minor significance. It is what underlies the major question as to whether s 167 only comes into play if the grantee of the option has or is deemed to have sufficient knowledge of relevant facts.
The primary judge correctly assessed this issue.
As to (c), section 167 is quite definite. It says that a operator of a retirement village who holds an option to purchase any residential premises from a resident of the village must decide whether or not to exercise the option, and must give the resident written notification of that decision, no later than 28 days after the resident permanently vacates the premises.
In the instant case, Ms Borthwick has been held to have permanently vacated the unit by December 2002. No notice was given of any decision to take up any option: thus, each option has lapsed.
Inherent in this proposition is that the section catches options whose exercise has not been triggered at the time that the resident permanently vacates the unit. I recognise this. I recognise that this produces a rather odd situation. However, I agree with the primary judge that this is the proper construction of the operation of s 167. This construction fits in with the legislature’s aim to give the resident certainty as to the value of her asset at the time she vacates the unit permanently.
It is true that the CTTT seems to have spent its time dealing with the Occupancy Option and then declared both options void. However, on the construction of s 167 which applied that result must inevitably follow.
As to the question that the CTTT’s decision might have been too wide, I would say that, technically that might be correct. However, if the option had lapsed, it was completely dead. Whether a court declared it lapsed, dead or void, is to my mind of no moment. Mr Brender fears that this distinction may have some consequences for ongoing litigation between the parties. I cannot see how this could be so. A reading of the material shows that both options must have become incapable of enforcement after January 2003.
Thus, I would dismiss the appeal with costs.
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LAST UPDATED:
19 March 2010