Bondi Beach Astra Retirement Village Pty Ltd v Hohman

This case involved an appeal to the Supreme Court of New South Wales from a decision of the Consumer, Trader and Tenancy Tribunal (CTTT). The appellant, Bondi Beach Astra Retirement Village Pty Ltd, sought to exercise a buyback option over a retirement unit owned by the respondent, Ms. Hohman, who was the executrix of her late sister, Rita Borthwick. The dispute centred on whether the appellant's option to buy back the unit had lapsed due to the operation of section 167 of the *Retirement Villages Act 1999* (NSW).

The primary legal issues before the court were: (1) whether the CTTT had erred in law in its interpretation of "permanently vacates" in relation to the retirement unit, and (2) whether section 167 of the *Retirement Villages Act 1999* required the holder of the option to have actual knowledge that the circumstances for its exercise had arisen for the option not to lapse. The appeal also touched upon the desirability of coupling proceedings for specific performance with statutory appeals.

The Supreme Court dismissed the appeal. Regarding the interpretation of "permanently vacates," the court held that it was open to the CTTT to conclude that a resident could permanently vacate a unit by ceasing physical occupation, even if some possessions remained and levies continued to be paid. The court found that if this involved an application of ordinary English language, the factual conclusion was within the CTTT's scope, and if it involved a legal question of construction, the CTTT's interpretation was not erroneous. Concerning section 167, the court agreed with the CTTT's reasoning that the section fixes a time by which notice must be given, running from the specified event, and does not require the village operator to have knowledge of the event's occurrence. The court noted that the section is concerned solely with the consequence of failing to give notice within the prescribed period, which is the loss of the right conferred by the option.

The appeal was dismissed with costs.