Cassar v Blue Care Retirement Living - [2015] QCAT 4

CITATION:

Cassar v Blue Care Retirement Living [2015] QCAT 4

PARTIES:	Janice Daw Cassar (Applicant)
v
Blue Care Retirement Living as Agent for The Uniting Church in Australia Property Trust (Respondent)

APPLICATION NUMBER:

OCL049-14

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

3 November 2014

HEARD AT:

Brisbane

DECISION OF:

Acting Senior Member Howard

DELIVERED ON:

6 January 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application is dismissed.

CATCHWORDS:

RETIREMENT VILLAGES – AGREEMENT TO TRANSFER – whether enforceable agreement to transfer resident from one unit to another within a retirement living complex – whether employee had ostensible authority – whether all essential terms agreed

Masters v Cameron (1954) 91 CLR 353

REPRESENTATIVES:

APPLICANT:

Janice Cassar was represented by Mr M P Williams of Counsel instructed by Crouch Lyndon Lawyers

RESPONDENT:

Blue Care Retirement Living as Agent for The Uniting Church in Australia Property Trust was represented by Ms K Borowicz, In-house Counsel

REASONS FOR DECISION

Ms Cassar is a resident in unit 709 at Tangara, a complex run by Blue Care Retirement Living as Agent for The Uniting Church in Australia Property Trust (‘Blue Care’). She resides in the unit under a rental premium contract between herself and the Uniting Church in Australia Property Trust acting through Blue Care and has done since the end of May 2010.
Ms Cassar claims that she reached agreement with Blue Care for the transfer to her of unit 801 in lieu of unit 709 whereby the parties were to enter into a PID and rental premium residence contract. She seeks orders enforcing that agreement. Blue Care denies that there is an agreement.
I have considerable sympathy for Ms Cassar’s situation. However, I have reached the conclusion that there is no agreement which is enforceable at law.

The evidence of about the alleged agreement

Ms Cassar says that in July 2013, she became aware that unit 801 was expected to soon become available. On about 8 July 2013 she telephoned the head office of Blue Care and asked to speak with someone in the sales department regarding the unit. She was told (by an unknown and unidentified person) that she should direct any enquiries in respect of purchase of a unit at Tangara to Ms Siani Traynor, the Retirement Living Officer (RLO) at Tangara, as she handled all sales for the complex. She conveyed her unhappiness about speaking with Ms Traynor regarding the proposal to purchase unit 801, but it was reiterated for a second time that all sales were handled by Ms Traynor for Tangara and to contact her.
On about 9 July 2013, Ms Cassar spoke with Ms Traynor. At that stage, she indicated that a friend of hers was interested in purchasing at Tangara and may be interested in the unit. Ms Traynor said she would not show anyone else the unit until she got back to Ms Cassar. However, she indicated that at that stage she wasn’t aware that the then resident was vacating unit 801.
On about 11 or 12 July 2013, Ms Cassar spoke with Ms Traynor again and advised that her friend was no longer interested but that she herself would like to transfer to unit 801. She said that she wished to transfer because unit 709 is cold and she had been ill, whereas unit 801 was warmer and lighter. Ms Cassar explains that in winter her unit gets no sun. On about 15 July, Ms Cassar spoke again with Ms Traynor, who at that stage said that she could not do anything to assist until she had the exit report for the resident in unit 801.
In August 2013, Ms Traynor told Ms Cassar that she had received the exit report, and that she understood the resident would be leaving at the end of August or in early September. She confirmed that she would not show the unit to anyone else, and that she would obtain figures for Ms Cassar from Blue Care. Ms Cassar says that Ms Traynor did not indicate that she would have to provide a written application to Blue Care for the transfer. Ms Traynor exchanged email with Mark Loynes, another Blue care employee, on 23 August 2013. In one of her emails to him, she noted that the ‘normal incoming would be $180,000.’ This is consistent with her oral evidence to the Tribunal, wherein she confirmed that $180,000 was the price of all of the units at the time.
Ms Traynor obtained some figures through Mark Loynes of Blue Care which were set out in an email of 23 August 2013 from him to Ms Traynor. Ms Traynor provided a copy of her email from Mr Loynes to Ms Cassar. It set out the following:
Current Position Unit 709
The resident current financial details are as follows:
·Exit Entitlement as at 23 August 2013, $90,153.24
·Current rental premium $372.67 per month
·General Service Charge $295.32 per month
·Maintenance Reserve Fund $57.64 per month
Proposed new Residence Contract Conditions Unit 801
·Ingoing Contribution Sales Price for the unit 801 $180,000.00 (Exit Entitlement will be calculated on this amount 25% over 5 years)
·Ingoing Contribution Paid $90,153.24
·Rental Premium $374.36 per month
·General Service Charge $295.32 per month
·Maintenance Reserve Fund $57.64 per month
·New PID and Residence Contract would be issued with a 14 day cooling off period.
·Resident would have to provide 30 days’ notice for the current unit 709
·Blue Care would release the funds after the 30 days’ notice period.
·Settlement Date could occur after the 30 days period as (sic) ended, if the PID/Residence Contract was signed 14 days or more before the end of the 30 days period ended.
Ms Cassar says that when Ms Traynor gave the email to her she said words to the effect of ‘these figures are a little different (pointing to the rent amount) but consider it and if you are happy to proceed let me know and we can arrange for the transfer’.[1] Ms Cassar says that she indicated she wanted to know what renovations would be done to the unit by Blue Care.
[1]Exhibit 1, paragraph 9.
Ms Traynor does not recall precisely what she said. Although she indicated that she would have been supportive of the transfer, she disputes that she would have been so definite as to say we can arrange for the transfer. She says in effect that she was only able to pass messages between the Blue Care hierarchy and the residents, rather than to arrange for sales and transfers. She spoke about the prices being set by one department of Blue Care, and the documents being prepared by another. Glenn Carter was in the department which set prices. She said that she did ‘the bits in the middle’.
Over the following weekend, Ms Cassar considered the contents of the email. After speaking with her daughter, she says she decided to go ahead. She says that on 26 August 2013, she approached Ms Traynor at the reception desk and said words to the effect of ‘yes, I am happy with those figures and accept’.[2] She also asked whether she needed to sign anything to accept the proposal, but says that Ms Traynor said there was no need as she would send an email immediately to the relevant department to arrange for the documents for 801 in exchange for 709. She says that Ms Traynor told her that when she had the paperwork, she would put it in her letterbox. Ms Traynor says that once she knew Ms Cassar was still interested, she considered she was requesting authority to proceed. On 2 September, she emailed Mark Loynes and others at Blue Care (although not Glenn Carter) confirming Ms Cassar’s interest and asking how to proceed.
[2]Exhibit 1, paragraph 11.
The resident in 801 vacated as planned: the unit remains vacant.
Subsequently, Ms Cassar inspected unit 801 with Ms Traynor on two occasions and discussed renovations to be done. She says that Ms Traynor remarked that a full renovation would be necessary and observed that Ms Cassar may want some similar features to those in unit 709. Ms Cassar agreed with those observations. Ms Cassar says that thereafter approximately every two weeks, whenever she saw Ms Traynor she asked if she had received anything but that Ms Traynor on each occasion indicated that she had not but that she would ‘chase them up’.
She says that towards the end of September or in early October Ms Traynor invited her into her office, and told her that Blue Care was having trouble with the preparation of the documents as they didn’t know what completion date to insert in the contract.
On 1 October 2013, Ms Traynor emailed Mark Loynes stating that she needed to do a ‘business case proposal’ to give to a person named Kris Hall because unit 801 needed reinstatement and requesting his assistance.[3] Details of the conversations or emails between Ms Traynor and other Blue Care staff which led her to send this email are not apparent. However, it is reasonable to infer that she had exchanges with other Blue Care staff, between 2 September and 1 October 2013, which led to the request for a business case proposal.
[3]Exhibit 4, attachment.
On the morning of 21 October 2013, Ms Cassar says that Ms Traynor asked her to provide a list of the alterations that she wished to have done in unit 801. She did so later on that day.[4] The alterations or renovations she sets out were extensive and referred to as extensive in her correspondence. She said that she used the same heading in her correspondence as had appeared on the email from Blue Care from Mark Loynes to Siani Traynor on 23 August, that is, proposed new residence contract for unit 801. Ms Cassar says that a few days later, Ms Traynor asked her to put in another proposal indicating how much she was prepared to pay towards the renovations. Ms Cassar says that she indicated she would not do so, and wanted Blue Care to come back to her telling her what they were going to do for the price of $180,000.
[4]Exhibit 3.
On 23 October 2013, Mr Traynor emailed Glenn Carter, stating that Mark Loynes had urged her to approach him for permission to proceed regarding a ‘potential unit transfer.’[5]
[5]Exhibit 4, attachment.
On 25 October 2013, Ms Traynor received an email from Glenn Carter stating that he had looked at the request for transfer, but ‘due to the financial aspects of the rental premium contract and the anticipated refurbishment costs Blue Care will incur in preparing unit 801, we are unable to approve to (sic) her request for a transfer of units.’[6] Ms Traynor said that she sent Mr Carter an email acknowledging his response and asking for clarification before she spoke with Ms Cassar, including about the rights of the resident. Blue Care has not placed that email in evidence.
[6]Exhibit 4, attachments.
Then on 31 October, as Ms Cassar was exiting the building, Ms Traynor spoke with her and told her that Blue Care would not agree to the transfer. Ms Cassar says that she responded that Blue Care could not do that as she had accepted. She says that Ms Traynor indicated she should write a letter to Blue Care setting out her grievances and she would see what she could do. Ms Traynor says that she may have told Ms Cassar that she could appeal it. Ms Cassar provided a letter dated 31 October 2013 to Ms Traynor for on forwarding to Blue Care.[7]
[7]Exhibit 2.
On 3 December 2013, Ms Cassar received a letter from Blue Care’s in-house legal counsel, Ms Borowicz, setting out why Blue Care would not agree to entering into a rental premium contract with her and advising that she could buy the unit for a higher price of $220,000. A copy of that correspondence has not been provided by either party. She spoke with Ms Borowicz on the following day and explained her dissatisfaction with the events. She explained that she was not told anything about rental premium contracts being unavailable and that she had believed the paperwork was being prepared. It appears from this evidence that Blue Care may have adopted new arrangements for structuring arrangements with residents, although this is not relevant to my decision about whether the parties had reached an enforceable agreement.
Ms Traynor no longer works for Blue Care. She gave her evidence pursuant to a notice to attend. She was unable to be specific about what was said to her by Ms Cassar or by her when she dealt with Ms Cassar during these events. She was a reluctant witness who gave the impression that she was exasperated by her dealings with the various departments within Blue Care, which she said were often very slow to respond to requests whether they were important matters such as Ms Cassar’s, or small maintenance items that needed to be done in Tangara. However, she did not believe that she had given Ms Cassar the impression that she had authority to bind Blue Care. She believes that Ms Cassar, (and other residents of Tangara), ‘would have been’ well aware of her inability to do anything without Blue Care’s approval.
Ms Traynor says that although she does not recall precisely the words she said, that she told Ms Cassar, she would get information about whether there was a possibility of transferring from unit 709 to 801. She said that the email from Mark Loynes was ‘just information’ and that she would not necessarily have tried to interpret it. She suggests that the information was to show to Ms Cassar to see if she was still interested. She considered she was conveying information only. She did not consider she had authority to proceed with the transfer, saying that she was in effect an intermediary between Ms Cassar and Blue Care. She does not recall explaining precisely what her role and authority was to Ms Cassar, but as discussed earlier, considered that Ms Cassar was aware of her limited authority.
That said, she did confirm that while she was in the role of RLO, she was the person who dealt with sales and presented contracts to would-be residents for them to sign.

Discussion about the evidence

Ms Traynor and Ms Cassar’s versions of events are largely similar, except that Ms Traynor does not recall specifically the words used in conversations between herself and Ms Cassar. They each had a different understanding about Ms Traynor’s ability to bind Blue Care.
Ms Traynor, it seems, was uncertain about the procedure and documentation for a transfer, as opposed to entry by a new resident, and reasonably sought advice and assistance from a number of staff at Blue Care. However, until 25 October there was apparently no suggestion from anyone she spoke to that the transfer could not proceed, although nor had any person specifically approved it. Indeed, given that Ms Cassar agreed to pay the then full price for the unit, it would not appear unreasonable to believe that there was unlikely to be a problem. Blue Care would be in the same position if the transfer proceeded if Ms Cassar had simply given notice of her intention to vacate unit 709 (and moved out of Tangara) and a new resident had agreed to purchase into unit 801.
It seems extraordinary that it took from 23 August 2013 until 25 October 2013, for anyone at Blue Care to inform Ms Traynor that Ms Cassar’s transfer would not go ahead. It is, however, in keeping with Ms Traynor’s exasperation about the general lack of responsiveness of staff in the Blue Care hierarchy to respond to issues and requests.
Despite the lack of formal approvals being in place internally for the transfer to occur, Ms Traynor’s evidence suggests that she believed that the transfer would proceed. Ms Traynor gave evidence that she enquired with Mr Carter about the rights of the resident when he said it was not to proceed. Ms Cassar says that Ms Traynor told her on 31 October 2013 to write a letter setting out her grievances and she’d see what she could do. Ms Traynor volunteered in evidence that she may have told Ms Cassar that she could ‘appeal it’.
Consistently with her understanding that agreement had been reached, on 31 October when told by Ms Traynor that Blue Care would not proceed with the transfer, Ms Cassar responded by stating that Blue Care could not do that because she had accepted. She reiterated this in her letter at Exhibit 3 of the same date.
I consider that both Ms Traynor and Ms Cassar are truthful witnesses. Ms Traynor does not have the same detailed recollection of the words used in discussions with Ms Cassar. No doubt she was busy, and these interactions were only a small part of her duties. In any event, to Ms Cassar, they had greater personal significance and she was therefore likely to have been more mindful of precisely what was said in their exchanges. I find that where Ms Traynor is unable to be specific, that conversations occurred as Ms Cassar alleges.

Did Ms Traynor have Blue Care’s ostensible authority to negotiate the alleged agreement?

I am satisfied that Ms Traynor was authorised to deal with or handle sales in accordance with her instructions from other Blue Care staff, but was not herself authorised to reach agreement to transfer. That said, it is apparent from Ms Traynor’s evidence that there was a misconception on Ms Cassar’s part that Ms Traynor was authorised to agree to the transfer. I have reached the conclusion that Blue Care was responsible for the misconception.
As a result of her telephone enquiries with Blue Care’s head office, Ms Cassar had reason to believe that Ms Traynor handled all of the sales for Tangara. There is no evidence that Ms Cassar was mistaken about the advice given to her to this effect. Indeed, Mr Traynor agrees that she provided information and documents to prospective residents, as well as the contract documents to sign. She did ‘handle’ the sales, although she personally may not have been able to approve them.
Blue Care submits that Ms Traynor’s advice to Ms Cassar to the effect that the response was to come from the relevant people at Blue Care indicated to any reasonable person that Ms Traynor ‘did not have the authority to accept agreement to any offer allegedly made and that it was unlikely that any agreement had been concluded.’[8] I do not accept this: Ms Cassar’s expectation was merely that the documentation would be prepared by another section of Blue Care. This does not affect whether she reasonably believed that agreement had been reached with Ms Traynor about the transfer.
[8]Blue Care’s written submissions dated 3 November 2014, paragraph 22c.
Ms Traynor considered she was simply the intermediary between Blue Care and the residents. However, she was an employee of Blue Care, not an intermediary third party who simply acted as a conduit for information. In the circumstances, Ms Cassar reasonably believed, (as a result of the advice from head office and Ms Traynor’s actual role in handling sales), that she had authority. Ms Traynor asserts that she believes that Ms Cassar was aware of the limits of her authority. However, whatever Ms Cassar may have thought or known about her role in matters for residents generally, she had a reasonable basis on which to believe that she handled the sales for Tangara. There is no evidence that anything said by Ms Traynor dispelled this reasonable belief, or that suggests that Ms Traynor’s actions were inconsistent with it.
I find that Ms Traynor was the representative of Blue Care as far as prospective residents were concerned. Further, she was held out by Blue Care as the person responsible for sales at Tangara, irrespective of her actual authority. I find that Ms Traynor was held out by Blue Care as having authority for sales at Tangara.
Accordingly, I find that at the time when Ms Cassar says she accepted the offer on 26 August 2013, as Ms Cassar submits, Ms Traynor had the apparent or ostensible authority of Blue Care to reach agreement.
That said, by the end of October 2013, I am satisfied that it was clear to Ms Cassar that Ms Traynor could not agree on Blue Care’s behalf to the renovations sought by Ms Cassar.

Is there a binding agreement?

Blue Care makes a variety of arguments as to why it submits there is no binding agreement.

Blue Care submits that on the basis of the exchanges between Ms Cassar and Ms Traynor, there was not the requisite offer and acceptance so as to create a legally binding contract. It contends that mere statement of price is insufficient to support the existence of a binding agreement, submitting that it was merely an invitation to treat. It says that at no time did it intend to be bound by the statement of price provided to Ms Cassar: it says it was mere provision of information only and that it intended only that further negotiations follow to clarify the remainder of the contractual arrangement. It argues that it is commercially untenable that providing information about price could constitute an offer, as there are commonly multiple enquiries on any particular unit.
It submits that the use of the word ‘proposal’ in Mr Loynes email supports this intention. It also relies upon the lack of formal correspondence to Ms Cassar about the figures as there having been no legal relationship between the parties. Further, it says that at the time of the alleged agreement, Blue Care could not grant an interest in the unit as the former resident continued to reside in it, and the information given did not provide for any acceptance to be subject to that resident’s departure. Additionally, it says that agreement was not reached in relation to a number of key or essential terms.
The exchanges between Mr Cassar and Ms Traynor, as well as the email from Mr Loynes, must be considered to determine whether an offer was made. There was not, in these circumstances, a mere statement of price by way of information as there might be if new potential residents asked for the price for a unit. Ms Cassar, a current resident, had advised Ms Traynor of her interest in a transfer. Ms Traynor advised that no-one else would be shown the unit.
Key terms pertaining to a ‘proposed new residence contract conditions unit 801’ were set out in Mr Loynes email. The earlier exchanges had already made it clear that it was subject to the former resident vacating. The email referred to the requirement for Ms Cassar to give notice on unit 709, and for a settlement date. A new PID and residence contract was required.
The PID and residence contract concerning unit 709 are before the Tribunal. Ms Cassar was familiar with the terms of these documents from that previous transaction. It is reasonable to infer that Ms Cassar understood that her new PID and residence contract would be in similar terms, save and except as provided for in Mr Loynes email.
There was a suggestion made at the hearing by Blue Care that the PID may have changed over time. However, no evidence was presented to this effect, and specifically no evidence was presented that the PID and residence contract had changed since Ms Cassar had entered into a PID and residence contract in 2010.
There were some questions in cross-examination of Ms Cassar about her understanding of her exit entitlement for unit 709, and the costs of reinstatement. However, there is no evidence or to suggest that the exit entitlement is not as Mr Loyne’s email set out.
Alternatively, Blue Care argues that if the Tribunal finds that an offer was made, there was in any event, no formal or written acceptance provided to Blue Care by Ms Cassar. Instead, it says she asked Ms Traynor about the status of her request for transfer, suggesting she believed that there were outstanding negotiations to be finalised. Consistently, it says, she did not give notice of her intention to vacate unit 709. It submits it did not lead Ms Cassar to believe that contract documents were being prepared.
Although I accept that Ms Cassar did not provide any written acceptance of the offer (because Ms Traynor told her it was not necessary), she did convey her acceptance of the terms in the Mark Loyne’s email to Ms Traynor. Ms Traynor then advised Ms Cassar that she would ask for the necessary documentation to be prepared. I have not been referred to any requirement for written notification of acceptance to be given. It is irrelevant whether Blue Care intended to be bound at that point given the apparent authority of Ms Traynor. That said, it is uncontroversial that the parties intended that the agreement be reduced to writing.
Finally, Blue Care argues that Ms Cassar has not provided any consideration, and that therefore, there is no legally enforceable agreement. Ms Cassar submits that she promised to pay the price in consideration for Blue Care’s promise to transfer. I accept that this was consideration provided by Ms Cassar.
I find that Ms Cassar’s exchanges with Ms Traynor up until some time after her acceptance of the terms in Mark Loyne’s email, reasonably gave her to understand that, subject to the other resident exiting unit 801 and Ms Cassar giving notice on unit 709, Blue Care was offering to transfer it to her in accordance with the terms set out in Mr Loyne’s email. I accept that Ms Cassar conveyed her acceptance of those terms to Ms Traynor. However, Ms Cassar had raised the issue of renovations to unit 801. Despite conveying her agreement to the terms in the email of Mr Loynes, I am satisfied that Ms Cassar had not abandoned her proposal to have Blue Care pay for a significant portion of the renovations.
After the agreement by Ms Cassar to the terms set out in Mark Loyne’s email, Ms Cassar and Ms Traynor inspected the unit and spoke about renovations in general terms. On 21 October 2013, Ms Cassar provided detailed correspondence about the extensive renovations she desired. She referred again to the renovations in her letter of 31 October.
For a valid contract to exist, all essential terms must be sufficiently certain. Ms Cassar submits that the terms as outlined in Mr Loyne’s email provide certainty to the agreement. She further argues that other terms may be reasonably implied because of the parties previous similar contract and the Retirement Villages Act 1999. Whereas I would accept that some general terms, namely the PID and the terms of the rent premium residence contract, may have been able to be reasonably implied, it is clear that there was no agreement about the alterations or renovations to be done to unit 801. The renovations Ms Cassar desired were extensive. Although Ms Cassar had indicated she wanted to know what renovations Blue Care would do to the unit, they had not otherwise been discussed at the time Ms Cassar accepted the terms in Mr Loyne’s email. On 21 October 2013, Ms Cassar set out in writing the alterations she wanted in unit 801. Some days later, she still declined to say what she was prepared to pay towards renovations.
There is no evidence about the likely cost of the renovation desired by Ms Cassar. However, renovations are expensive. Depending on precisely what is done, conceivably the alterations may cost, say $5000 or $40,000 or any other unknown amount. This significantly affects the costs of the transaction to each party. I am satisfied that the renovations and responsibility for the costs of same to be borne by each party is an essential term.
In an appropriate situation, a term may be implied. However, there is no apparent basis upon which a term could be implied about which party was to bear the cost of some or all of the renovations Ms Cassar required. There is no evidence to suggest a mechanism was discussed which may allow a term to be implied about the proportion be borne by either party. I find that it is not reasonable to imply a term about the renovations.
In the absence of agreement about the renovations and who was to bear the costs of them, I find that there was uncertainty about the agreement reached. At best, the parties had reached agreement in principle about the transfer on the terms in Mr Loyne’s email, subject to agreement being reached about the renovations.
Accordingly, I am not satisfied that there was agreement as to all essential terms. Ms Cassar’s claim must fail. The application is dismissed.

Observations

Even if I had been satisfied that all essential terms had been agreed, that would not be the end of the matter. Ms Cassar still would not succeed on her claim. On Ms Cassar’s case, it is clear that documentation was to be prepared and executed.
The High Court has held that there are three classes of agreement where parties have reached a negotiated contractual agreement that is to be formalised.[9] In some circumstances, the parties may have reached agreement about all terms of the bargain and intend to be bound immediately, although proposing to reduce the terms to a final document which will be fuller and more precise, although not different in effect. In other circumstances, the parties have completely agreed upon all terms of their bargain and do not intend to add or depart from them, but nevertheless, make performance conditional upon execution of a formal document. The final class is where the intention is not to make a concluded agreement until and unless a formal document is executed by the parties. This has sometimes been described as an agreement to agree, and is unenforceable.
[9]Masters v Cameron (1954) 91 CLR 353, at 360.
Blue Care submits that the reference in Mr Loyne’s email to issuing a new PID and residence contract evidences an intention not to be bound until written contracts were entered into.
If it was necessary for me to determine the issue, I would not be satisfied that either party intended to be bound immediately. Neither acted as though they intended to be bound immediately. Although Ms Cassar asserted that Blue Care could not retract its agreement to the transfer when told by Ms Traynor that Blue Care would not proceed, she had not acted as though she considered herself immediately bound. In particular, she did not give notice on unit 709 effective when the other resident moved out of 801. Instead, she asked after the documents. Also, as discussed above agreement had not been reached regarding the renovations to unit 801 and Ms Cassar continued to negotiate with Blue Care about this. Further, given the sum of money involved in the transaction, it would be reasonable to draw the inference (and I would draw it) that the parties did not intend to be bound until formal documents were executed.
Accordingly, any agreement reached could only fall in the final class of agreement as discussed by the High Court. As formal documentation was not executed at any time, I would not be satisfied that there was a binding contract.