CO-OPERATION HOUSING and TRAMSAK - [2022] WASAT 1

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: RETIREMENT VILLAGES ACT 1992 (WA)
CITATION:   CO-OPERATION HOUSING and TRAMSAK [2022] WASAT 1
MEMBER:   MS KY LOH, MEMBER
HEARD:   24 AND 25 AUGUST 2021 AND 1 SEPTEMBER 2021
DELIVERED          :   13 JANUARY 2022
FILE NO/S:   CC 671 of 2020
BETWEEN:   CO-OPERATION HOUSING
Applicant
AND
MATIJA TRAMSAK
Respondent

Catchwords:

Retirement Villages - Termination of residence contract - Persistent breach of residence rules and residence contract - Justification for terminating contract - Quiet enjoyment of residents

Legislation:

Fair Trading (Retirement Villages Interim Code) Regulations 2020 (WA), reg 3, reg 3(a), reg 3(c), reg 34(1), reg 34(2)(b), reg 34(2)(c), reg 34(2)(d)
Retirement Villages Act 1992 (WA), s 3(1), s 17(1), s 59, s 59(1), s 59(3), s 59(4)

Result:

Application allowed

Category: B

Representation:

Counsel:

Applicant	:	E Stockmann and M Marshall (as representatives)
Respondent	:	J Tramsak (as representative)

Solicitors:

Applicant	:	N/A
Respondent	:	N/A

Case(s) referred to in decision(s):

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Ms Matija Tramsak (the resident) occupies a unit in the 'Tapper Street Mews' retirement village (the village) owned and operated, originally, by the City of Fremantle Trust Fund (the Trust), and later, by Cooperation Housing (the owner) (collectively, the owners).
Since 2007, the resident has demonstrated anti-social behaviour with numerous complaints received about her shouting and swearing, which has disturbed the peaceful enjoyment of several other residents in the village and has also obstructed maintenance works.
In particular, there is a long-standing dispute between her and another resident, Mr Davies, which has resulted in the police attending on 18 occasions to deal with their altercations and complaints about restraining order violations.
The resident's behaviour has been so bizarre and unreasonable at times that Fremantle Police and the managers and the owners of the village have questioned whether the resident suffers from some form of mental or psychiatric illness or disorder, resulting in assessments by two psychiatrists.
By April 2020, the situation became so untenable that the Fremantle Police effectively beseeched the owner to resolve the conflictual environment through civil action, prompting the owner to apply to terminate the resident's occupation.
For reasons set out below, I find that the resident has persistently breached her residence contract (the contract) and the residence rules (the rules) over the course of her 14-year occupancy, despite concerted efforts by the owners of the village to manage the barrage of complaints over her anti-social behaviour, justifying the termination of the contract.

Issue for determination

The primary issue for determination is whether the resident has breached the contract and/or the rules such as to justify termination of the residence contract under s 59 of the Retirement Villages Act 1992 (WA) (the Act).
In considering the primary issue, the following secondary issues arise:
1)What are the applicable terms of the contract and/or the rules?
2)Did the resident breach the terms of the contract and/or the rules?
3)If so, considering the circumstances of the case, are the breaches persistent such as to justify termination of the contract?

Factual Background

The following factual background is gleaned from the documents tendered by the parties or is otherwise not in dispute.
On 31 October 2007, the resident and her daughter Ms Dianna Alder approached the City of Fremantle (City) about applying for a unit at the village which was owned and operated by the Trust.
The village has 11 residential units, not all of which have been occupied during the resident's occupancy.
In December 2007, Ms Alder returned a signed copy of the contract to the City.
Village Solutions Australia was appointed as manager of the village in 2010, and from 1 July 2015 the owner was the appointed manager of the village.
The owner purchased the village on 23 October 2018, and continued to manage the village.
When the resident moved in, complaints were received from the other residents about the resident's behaviour, in particular, from Mr Davis of Unit 3. In June 2008, (and then again in November 2010) all the other residents signed a petition calling for the termination of the resident's contract.
Over the course of January 2010 to December 2011, Fremantle Police were contacted 48 times regarding disputes in the village, prompting the liaison police officer from Fremantle Police to remark in an email to the City that the ongoing conflict 'is unnecessarily utilising valuable police resources'.
The conflict between Mr Davis and the resident deteriorated to the point where Mr Davis was granted a violence restraining order against the resident on 2 June 2010, which expired on 3 July 2014. Mr Davis was granted another violence restraining order on 27 January 2019 for a period of two years.
The original restraining order restrained the resident from, amongst other conduct, committing any act of abuse against Mr Davis, approaching him within 5 metres outside of his residence, and entering upon, or within 5 metres of the nearest boundary of, those premises or be within 4 metres of his vehicle.
The more recent restraining order restrained the resident from, amongst other conduct, causing (or attempting to cause) damage to any property in Mr Davis' possession, entering or remaining on his premises, and approaching within 5 metres of him outside of the village, and approaching or remaining within 5 metres of his property or property under his control (including his car).
The resident was convicted and fined for breaching the restraining orders and for common assault against Mr Davis:
a)on 10 December 2013 - she was convicted (with no sentence imposed) for common assault by spraying Mr Davis with a garden hose on 26 October 2013;
b)on 3 November 2014 - she was convicted and fined $100 for common assault and breach of the restraining order by spraying Mr Davis with a garden hose on 8 November 2013;
c)On 24 April 2015 - she was convicted and fined $350 for common assault by spraying Mr Davis with a garden hose on 5 February 2015. She had also raised a brick above her head, causing Mr Davis to feel threatened;
d)On 4 June 2019 - she was convicted and fined $500 for breach of the restraining order by deliberately directing her hose towards Mr Davis' residence and spraying his outdoor furnishings with water on 18 February 2019.
There was a charge for breach of the restraining order on 6 August 2011 that was dismissed for want of prosecution. It appears there may also have been a charge or proposed charge for an incident on 27 November 2015 but may have been withdrawn or otherwise dismissed by the court.
It appears that there is also a restraining order against Mr Davies, but it is not clear who is protected under that order. That order expires on 22 August 2022. It does not appear that Mr Davies has breached that order based on his clean criminal record.
Due to complaints about her behaviour, the resident was referred for psychiatric assessment. In particular, Fremantle Police made referrals in March and April 2020 to the Fremantle Mental Health team for information or assessment as to whether the resident had a mental illness.
The resident was first assessed in October 2008 by Dr Mathew Samuel of The Hollywood Clinic, and then in February 2020 by Dr Bogdan Ceranic of Fremantle Older Adult Mental Health Service. Both doctors effectively concluded that she did not suffer from a major psychiatric illness, with Dr Samuel opining that some of her behaviours 'could be due to her cultural background' while Dr Ceranic considered that 'her presentation was in line with her personality structure, cultural background and lack of education'.
In April 2020, Fremantle Police wrote to the owner, confirming that they have attended the village 18 times since 2011.
Fremantle Police advised that the recent calls from Mr Davies do not appear, on initial police examination, to be instances which meet the threshold of criminal sanction. They consider that, having liaised with or attended the location with joint health agencies, the situation has reached a point where it cannot be resolved with conventional police or health response and the only option is by way of eviction or relocation.
On 28 May 2020, the owner served on the resident by hand a notice of intention to seek an order from the Tribunal for termination of the contract under s 59 of the Act for persistent breaches of the contract and the rules.
On 11 June 2020, the owner filed an application for an order for termination of the contract with the Tribunal.

The owner's case

The owner contends that the resident has persistently breached the contract and the rules (including the amended rules in 2016 and 2019) by the following conduct:
a)she has allowed her boyfriend, Mr Paul Adrade, to occupy the unit for days at a time without the owner's consent (contrary to clause 5(k) of the contract and rule 4(b) of the amended rules), and whilst at the village she has allowed him to breach the rules (contrary to rule 4(c) of the amended rules);
b)she has caused noise disturbance, including by shouting and screaming, on various occasions, contrary to clause 5(n) of the contract and rule 5(c) of the amended rules;
c)she has used the hose for the common area excessively, contrary to rule 8(a) of the amended rules;
d)she has snapped branches and buds from trees, contrary to rule 8(b) of the amended rules;
e)she has interfered with the security lights, contrary to rule 8(c) of the amended rules;
f)she has used profanities and dressed inappropriately while in the common area of the village, contrary to rule 9(c) of the amended rules;
g)she does not allow the owner to enter her unit, contrary to clause 5(b) of the contract; and
h)she has obstructed the footpaths and other residents' parking bays, contrary to rule (d) of the rules.
The owner says that the persistent breaches by the resident justify termination of the contract, due to the lengthy period of her noncompliance and failure to remedy the breaches, with the likelihood that she will continue to behave in the same manner which causes the breaches into the future.
This is despite the efforts of village managers trying to manage and get support for such behaviour.
The owner also contends that it is appropriate to order the termination of the contract due to the continued negative impact of the resident's behaviour on the mental and physical health of the other elderly residents.
Further, there would be a continued drain of police, health and judicial service resources.
The owner denies that the resident's illiteracy negates the consultation and notice of the amended rules to the resident as it was not aware that the resident was illiterate until the application was made to the Tribunal.
There was a deed of variation of agreement to reflect that the owner took over ownership of the village on 23 October 2018. The owner does not rely on the deed of variation: see [186].

The resident's case

The resident did not give evidence nor appear at the hearing, and is represented by her daughter Ms Julie Tramsak.
The resident does not contest that she signed the contract, nor that she had failed to understand the terms of the contract (which incorporated the rules). Indeed, a City file note recorded that the resident advised that she did not require legal advice nor an interpreter when she signed the contract as she had 'discussed the [contract] with her daughter and was happy with the arrangements'.
The resident contests, however, that she understood the amended residence rules that followed in March 2016 and May 2019.
The resident denies that she has breached the contract or the rules.
In particular, she denies that Mr Adrade lives at her unit, although accepts that he visits her and stays overnight for a few nights.
She challenges the other residents' testimony on the basis that they have been coached by the owner and because they have been provided with a copy of the resident's response filed with the Tribunal.
She also challenges the testimony of Ms Sigrid Adam, the former village manager, as being unreliable due to the lapse of time since Ms Adams has managed the village.
She denies that her actions towards the bollard is a breach of the rules.
She denies that her actions towards Mr Davies is criminal behaviour, as confirmed by Fremantle Police.
She contends that whilst there will be neighbours who do not get along, it is not a reason for terminating a contract, which would be at great financial and emotional cost to her.
The owner has not complied with its duty to take into account the linguistic background of each resident, and has treated the resident unfairly.
The owner has victimised the resident by encouraging other residents to complain about her, and has refused her maintenance requests while attending immediately to other residents' requests.

Evidence

The owner relies on the documentary evidence tendered at the hearing and the testimony of the following witnesses:
a)Marisa Spaziani - a director at the City, who was the Director of Community Development in 2009 to 2016;
b)Ms Adams - the director of Village Solutions Australia (formerly Village Support), who was the appointed manager of the village in late 2009/2010 to 2015;
c)John Di Tommaso - a semi-retired resident of Unit 6 of the village since 2010;
d)Delores Anne Richardson – a retired resident of Unit 7 of the village for the last 22 years;
e)Nan Maria Connell – a retired resident of Unit 2 of the village for the last five and half years;
f)Jann Angeline Rose – a retired resident of Unit 1 of the village since 23 November 2020; and
g)Eugenia Stockmann - the Chief Executive Officer (CEO) of the owner.
The owner also called a police officer from Fremantle Police, who prepared subpoenaed documents for the hearing but otherwise was not involved in any police attendances or has any personal knowledge of the resident.
The resident did not appear nor gave evidence at the hearing. She relies on the testimony of the following witnesses:
a)Mr Adrade - the resident's friend of nearly 12 years; and
b)Ms Alder - one of the resident's daughters.

Ms Spaziani

In 2009, Ms Spaziani was involved in supervising staff providing services at the village.
She recalled that the village residents started to complain about the resident's behaviour which disturbed their quiet enjoyment and peace at the village, and also property damage.
The City's documents reveal that the first two complaints were raised in March 2018.
She also recalled that maintenance staff had complained about the resident, whose inexplicable and inappropriate behaviour made them uncomfortable, such as swearing and yelling, turning on the hose, throwing things and would sometimes not let them in her unit.
On occasions where external contractors such as Western Power needed access to her unit, the contractors would also complain that the resident had approached them inappropriately or refused them access.
Her behaviour was so concerning that the City thought that she was not well and asked her general practitioner for a doctor's certificate. Her doctor certified that she was fine to live independently in the village.
The basis for concern over the resident's behaviour included a letter from the resident's son, Mr Victor Tramsak, dated 1 July 2008, in which he advised that his mother suffers from post-traumatic stress disorder after having been physically assaulted by two separate people in 1999. He also refers to 'grief' which she suffers over losing her first child in a car accident in 1971.
The City then appointed Village Solutions in late 2009/2010 as the village manager on a day-to-day basis, as it was not a key role of local government to manage retirement villages.
Whilst the City accepted the dispute was mainly about Mr Davis and the resident, there were also other residents who complained about the resident's behaviour.
The City tried to resolve the conflict between Mr Davis and the resident by unsuccessfully asking if either would move. It then offered to purchase the unit and offered another unit in another location (to be renovated), plus relocation costs, which the resident rejected. It also tried to speak to the resident's family, but did not get far with them beyond correspondence as they did not live in Perth at the time.
Ms Spaziani did not recall the City being formally advised in writing that the resident was illiterate, although the City appreciated that English was not her first language, and it had organised a translator for her.
However, the documents reveal that Ms Alder had advised the City by email of 11 April 2008 that the resident was illiterate. Nothing turns on this discrepancy as I do not need to determine the effectiveness of any notice or service by the City. Further, it is not unreasonable for a lapse of memory on information which was provided more than 13 years ago, and I am otherwise satisfied that the City's documents generally support Ms Spaziani's oral evidence.
In early 2009, the City applied to the Tribunal to try to terminate the resident's contract as a last resort, as it did not consider that the situation could continue, with the residents being elderly and having health problems.
The City abandoned the application when advised of the difficulties of pursuing termination.
The City did not apply to terminate Mr Davis' contract as no other resident had complained about Mr Davis: the resident was the 'common denominator' of complaints by other residents.

Ms Adams

Ms Adams is an experienced village operator with 50 years' experience of village management. She is a member of Leading Aged Services Australia ('LASA'), the peak body for aged care and residential villages, and has been a judge in annual residential villages awards.
She is also a member of Real Estate Institute of Western Australia (REIWA) and the Property Council, and is a licensee of a real estate agency.
She now manages six residential villages and consults to several other villages.
The village was a very small village in the portfolio of the City or operator, which provides low-cost housing for independent seniors. Out of the 11 units, nine were occupied when she first managed the village, and they found another resident for one of the remaining vacant units.
The village was not overly well-maintained when she took over and there had been huge changes in the residential villages industry. Not being its core business, the City felt out of its depths and could not deal with the day-to-day business of managing the village.
The village should have been one of the most streamline to manage; however due to the vexatious behaviour of the resident, it became a full-time job for Ms Adams to manage 10 units.
The resident would yell expletives to contractors, other residents and village managers, and not allow contractors to do their job every time they came on site.
The resident would also cause ongoing damage to property in the village, such as chopping garden hoses and clothes lines in half after they had just been replaced.
When other residents came home from their shopping, she would be there to hose them down.
There was a large police presence in the village, and Ms Adams believed that the damage to the village's reputation is attributable to the resident.
She said that the situation would ramp up when the resident's partner was at the village.
The resident was a constant source of agitation for Mr Davis, who complained that the former targeted his car, and slung profanity as she walked past. The resident would also water the garden in her underwear, and graffiti his footpath with chalk several times.

Ms Adams accepts that Mr Davis was not always in the right, but rejects that he is the only complainant of the resident's behaviour, citing angry phone calls from other residents' children.
There might have been reprieve from complaints about the resident's behaviour for about two weeks, otherwise there were complaints everyday about the resident breaching the contract and the rules.
Ms Adams sent notices of breaches to the resident for tampering with the lighting bollard (or security light), as the latter disliked the lighting. There had been constant damage to the light for which the City had to pay.
Ms Adams also had calls from Mr Di Tommaso crying from the stress of living next to the resident.
Ms Adams did not think the resident was a good fit for living amongst seniors, and would have ruled out the resident as suitable for living in the village.
Ms Adams had understood the resident suffered from post-traumatic stress disorder and tried to give her some leeway, but due to the close environment with neighbours at each other's doorsteps, every other resident had been impacted by the resident's behaviour every single day.
Ms Adams was not aware the resident was illiterate, and has conversed with the resident in English.
The resident has threatened Ms Adams personally when she saw Ms Adams in the streets in Fremantle, by approaching and asking her to 'watch her back'.
The truth and accuracy of Ms Adams' evidence was not seriously challenged, and I found her to be an honest witness of fact.

Mr Di Tommaso

When Mr Di Tommaso moved into the village 11 years ago he had been warned about a conflict between two residents.
Since then, it has been like living in hell 24 hours seven days a week, with the resident disturbing his sleep every night with shouting and banging.
He would call Ms Adams crying from the resident's impact on him, and believes his health is going downhill.
Whilst his bedroom does not directly adjoin her bedroom, he can still hear her, even when he tries to sleep in a different place.
He has seen her:
•walking outside at 3 am or 4 am in the morning, shouting and screaming, using abusive language;
•damaging property by watering and hosing down the security light in her garden, making it flicker;
•slamming rubbish bins;
•climbing over the wall and cutting his clothesline in his backyard;
•screaming abuse at tradespeople;
•spraying Mr Davis with a hose about three or four years ago;
•swearing at him, calling him stupid.
The resident would throw rubbish into his backyard, and throw sand in his front garden. He has seen her smoke, and believes she also throws her cigarette butts into his backyard.
He suffers from asthma and has coughed when she smokes near him. After she was told she could not smoke outside her unit and only in her backyard, she blew smoke right into his front bedroom window.
He denies that he was coached in giving his evidence.
Whilst the resident's representative suggests that it was inappropriate for Mr Di Tommaso (and the other resident witnesses) to be given a copy of the resident's response as a form of witness coaching, there is no prohibition against providing those documents to potential witnesses.
Whilst it is open for the resident's representative to challenge the veracity of each witnesses' evidence, I find that Mr Di Tommaso has given his oral evidence truthfully.

Ms Richardson

Ms Richardson lives two units down from the resident. She is 80odd years old, and is the longest-living resident at the village.
Prior to the resident moving into the village, Ms Richardson found the village extremely peaceful.
She said the resident's presence at the village has affected her badly, with her nerves being 'shot to bits'. She cannot walk to her car without the resident gesturing at her.
When the resident speaks English, she uses the most appalling and foul language. The resident rants and raves at any time of the day, and will yell at everyone and their visitors.
She has seen the resident putting a rubbish bin behind Mr Davis' car.
Ms Richardson has also seen the resident unscrew the light from the security light.
She has also seen the resident follow tradespersons by coming up to their cars and follow them and make a 'crazy person' gesture to them.
Ms Richardson was aware of the confrontations between Mr Davis and the resident, which resulted in police attendances. On one occasion, she saw six police officers attend, with the resident being arrested in handcuffs, shouting and screaming instead of going quietly.
When asked whether these proceedings have been made based simply on Mr Davis' complaints, Ms Richardson disagreed, stating that whilst the two of them clash all the time, the other residents also have to put up with the resident's behaviour which is affecting them all.
Mr Davis is not a friend of Ms Richardson's.
The accuracy of her written statement prepared in August 2020 was challenged, which had stated that she had seen the resident pouring milk onto Ms Richardson's car, which she conceded in oral testimony she had not personally observed.
Appreciating that Ms Richardson is asked to recall details over the lengthy period of the resident's occupancy, it is perhaps unsurprising that her memory is not infallible. I am otherwise satisfied that she is on the whole an honest witness, and I accept her evidence of how the resident's behaviour has affected her health and well-being.
However, in light of the inconsistency identified between her oral testimony and her written statement, I have treated Ms Richardson's evidence as to fact with a degree of caution and have only relied upon her oral evidence that is supported by evidence given by other residents in these proceedings.

Ms Connell

Ms Connell lives next to Mr Davis, who himself lives across from the resident.
She and Mr Davis are not friends.
Ms Connell has found it difficult to cut off from the anger and aggression projecting from the resident without feeling stressed and upset over a long period of time. She says that quiet enjoyment in the village does not exist, and the peaceful and quiet life that she expects in her house has not existed the whole time she has been at the village.
When Ms Connell has friends over, the resident will always try to get in the former's unit to give lollies, and then burst into tears if she is denied entry.
Ms Connell recalls an incident two months ago when she heard the resident behaving really angrily, shouting and screaming at her from 2 metres from the former's front window. Ms Connell usually ignores the resident, but this incident went on and on, frightening her.
Ms Connell believes that the resident has been targeting her a lot recently, perhaps due to the Tribunal proceedings. The resident will follow Ms Connell when the latter goes to the bin (and bangs the bin), and when collecting her mail, and when she going to the garden.
Ms Connell recounts occasions where the resident had upset a former elderly and frail resident by refusing to leave that elderly resident's unit after bringing lunch to her.
She also recalls hearing an incident unfold where the resident was upset by her neighbour's tree that was shedding leaves into the resident's backyard, so much so the resident began beating the fence. The neighbour had apologised and said her husband would cut the tree branches when he returned, but the resident was in such a state that MsٲConnell's friend told her to stay out of it and let the police handle it.
While accepting that it is the resident's natural disposition to speak loudly, Ms Connell stated that the resident went above by shouting and, when agitated, screamed in a really strident way.
Ms Connell surmised that the resident may have had a traumatic background or encounters language barriers which makes her incapable of making a connection with the other residents in a socially acceptable way.
She denies she was coached by the owner.
When questioned about why her oral testimony mentions things that were not set out in her witness statement prepared in August 2020, she stated that she took a broader outlook a year ago, and that it was not a definitive statement on all the things she had to say. At the time, she had simply been asked to put forward a response to the resident's case.
Having reviewed Ms Connell's short witness statement, I have found no inconsistency between her witness statement and oral testimony, and accept that she had not prepared the statement as a definitive statement of all that she had observed. I found Ms Connell to be an honest and truthful witness.

Ms Rose

When Ms Rose moved into Unit 1 on 23 November 2020, she had heard of incidents involving a resident with mental health issues.
Her personal interactions with the resident include a time where the resident came to face her aggressively and asked her about the latter's rent.
Ms Rose finds the resident very confrontational and behaves in an offensive manner by shouting.
She has witnessed how stressed other residents are and how unpleasant it can be around the resident.
The resident had tried twice to get into Ms Rose's unit, and is always shouting.
She has learnt not to engage with the resident whilst going towards her car.
She does not believe there is standard of living nor quiet enjoyment in the village due to the resident's behaviour.
She does not believe the resident yells because the latter is hard of hearing.
The truth of Ms Rose's evidence is not challenged.

Ms Stockmann

Ms Stockmann has been the CEO of the owner for four years, and was aware of issues with the resident's behaviour when she stepped into the role.
The owner provides community housing in the state, which involves providing affordable housing to low-income members.
The documents relied upon by the owner include the amended residence rules of, and minutes of residents' meetings in, March 2016 and May 2019 respectively.
On 23 March 2016, a residents' meeting was conducted with all bar one of the residents. Minutes of the meeting noted the resident as having attended that meeting, and also recorded further discussion on redrafted residence rules that were to be presented at the next residents' meeting for endorsement.
A document entitled 'Tapper Street Mews Charter of Residents' Rights and Responsibilities and Residence Rules March 2016' ('2016 amended rules') relevantly contain the following rules:
•Rule 4(b): If you wish to have someone live with you on a temporary or permanent basis, you must obtain our consent beforehand. We will not unreasonably refuse such a request. No other person may live in your unit, other than those approved within your residence contract, without our prior consent.
•Rule 4(c): You must take all reasonable steps to ensure that all your visitors and guests … comply with these Residence Rules. Any visitor or guest who seriously or repeatedly breaks these Residence Rules may be asked to leave the village immediately.
•Rule 5(c): You must not shout at or in the presence of others, whether inside your premises or in a common area, in a way that interferes with others' quiet enjoyment of the village.
•Rule 8(a): The state of the gardens and grounds is important to the overall appearance and atmosphere of the village for residents and visitors. It is our responsibility to maintain all lawns and gardens in common areas in a presentable condition. If you wish to assist us, such as by watering or weeding the common area near your premises, we would welcome this, provided you obtain our prior consent.
•Rule 8(b): You must not prune or remove any plant or any part of any plant from any common area without our prior consent.
•Rule 8(c): You must not interfere in any way with any common-area property, including security lights.
•Rule 9(c): When in any common area, you must be dressed in a generally decent and inoffensive manner, and must not behave or use language in a manner likely to cause offence, distress or discomfort to another person.
On 22 May 2019, a residents' meeting attended by all bar Mr Di Tomasso recorded that the meeting agreed unanimously to accept proposed changes to the rules regarding pets and residents with video security video.
The provisions in a document entitled 'Tapper Street Mews Charter of Residents' Rights and Responsibilities and Residence Rules May 2019' ('2019 amended rules') appear, in all other relevant respects, the same as the 2016 amended rules.
In Ms Stockmann's view, the village requires day-to-day management, including fielding continuous phone calls of complaints from residents.
The owner has recorded more than 250 complaints or correspondence about the resident since the owner took over ownership from the City. Ms Stockmann does not typically follow up on minor complaints.
While she accepts most of the calls are from Mr Davis, she considers that there are other residents who have given up on complaining about the resident as they have had to live with it for all these years.
She does not consider it a good living environment for anyone in the village, and has tried to engage with other agencies such as mental health teams, police, and the Western Australia Chief Psychiatrist to find a solution to no avail. The owner commenced Tribunal proceedings as a last resort to get a resolution.
She confirms that there have been significant costs in dealing with damage to the security light, and has asked the electrician to put a cover around it so it does not shines into the resident's bedroom. However, the resident continues to water or cover the security light, which may cause damage if it is continuously hosed down on the top for an extended period.
It will cost $1,000 to move the security light.
In the last four years, there has been no other security light that has had to be fixed, while the one in the resident's courtyard has had to be fixed multiple times.
The security lights are all located on common property in the central lawn area to light the footpaths.
While residents would be required to pay the costs of damage caused by them, the owner has not on-charged the resident for costs of damage to the security light.
Despite being asked, the resident has refused to seek permission from the owner to allow a regular visitor (Mr Adrade) to visit her unit. Ms Stockmann considers someone who visits two to three nights a week and stays overnight as a visitor for whom the owner's permission is required.
Further, the owner has not been able to conduct a property inspection on the resident's unit since 2019.
Following a residents' meeting, it was felt that the high water consumption was related to the resident's use of water, and so it was resolved that only selective residents would be provided with a key to the tap and no resident could leave it running for hours on end. Ms Stockmann denied telling a resident, Frank, that he was not to give the resident a key.
Ms Stockmann was aware the resident could not converse very well in English, but was never notified that the resident was illiterate, only for correspondence to be forwarded to Ms Alder.
Ms Stockmann has issued three notices of breach to the owner through Ms Alder, and only received a late response to her third notice.
She has discussed with Ms Alder options of relocating the resident, but these discussions did not go anywhere.
Ms Stockmann denies that the resident's request for maintenance works has been treated less favourably than others. She further clarifies that financial contributions paid by the resident are applied towards the whole village, not just towards the resident's unit.
Ms Stockmann provided a copy of the resident's response to those residents who were giving evidence in these proceedings.
She denies influencing the residents in preparing their witness statements. As found in [95], there is no prohibition in providing a copy of the respondent's response to potential witnesses.

Mr Adrade

Mr Adrade stated that he was a good friend of the resident's, akin to family, for close to 12 years. He has stayed at her unit for '1, 2 or 3 days' and never more than 14 days.
In cross-examination he repeated that he would only stay for '1, 2 or 3 days'. When asked how often he would stay with the resident, he said it might be weekly, although one time he did not see her for a month.

Ms Alder

Ms Alder thinks that some of the animosity towards the resident by Mr Davis or some of the other residents might relate to jealousy that the resident paid to re-tile her unit.
Ms Alder thinks Mr Davis wants to exert control over the village, and has become vexatious and fixated over his dislike for the resident by constantly complaining about her.
Ms Alder accepts that the resident is simple and child-like, and very reactionary to Ms Davis' actions, having been fined in court for breaching the restraining order against her.
The resident does not feel accepted in Australia. Since her eldest daughter's death in a car accident, she has had a bit of mistrust in the 'system'.
It has been an underlying issue with the resident being emotional at times, who will have sobbing episodes, particularly on her deceased's daughter's birthday or other special events like Mother's Day or the day of her daughter's death.
She thinks the resident was on Valium in the 1940s or 1950s.
Ms Alder accepts that the resident has a strong voice, especially when she is on the phone, and is not softly spoken. She agrees that the resident uses English swear words.
Ms Alder says the resident has some friends in the village, although Mr Davis will approach new residents and create angst about the resident.
Ms Alder denies that tradespersons have been denied access to the resident's unit.
Ms Alder states that the resident is upset that most of her constant requests for maintenance to her unit, especially painting, have been denied.
Ms Alder believes that the security light that shines into the resident's bedroom was added in front of her unit through someone's request 'because he liked to watch over her'.
She says the light from the security light is very bright and piercing.
She denies that the resident vandalises the security light, but is only covering it with a bucket, which she does not think will cause harm to the light.
She says that the resident waters the security light by accident, although accepts that the ground surrounding the security light is surrounded by gravel since at least November 2018.
She says that the resident does not acknowledge she has a hearing issue, and does not have a hearing aid.
Ms Alder believes the resident is being victimised by the owner, as the interactions with the owner tend to be one-way with investigating complaints against the resident but not the resident's complaints against Mr Davis.
The resident has also been victimised by having her access to the watering tap restricted, with only a few residents having keys to access the tap.
The resident did not want to move as the cost of private rentals was not financially feasible.
She agrees to only having attended an in-person meeting with the owner's representatives once, and otherwise communication was by telephone or email, as she was busy with work.
The resident did not fill in the form to seek the owner's permission for Mr Adrade's visits as she was suspicious about the form.

Legal and legislative framework

The Act

The purpose of the Act is, relevantly, to regulate retirement villages and the rights of residents in such villages.
A retirement village is relevantly defined as a complex of residential premises and appurtenant land, occupied or intended for occupation under a retirement village scheme or used or intended to be used for or in connection with a retirement village scheme: s 3(1) definition of 'retirement village' under the Act.
A retirement village scheme is, in turn, relevantly defined as a scheme established for retired persons or predominantly for retired persons, under which residential premises are occupied in pursuance of a licence: para (a) of s 3 definition of 'retirement village scheme' under the Act.

An administering body may apply to the Tribunal to terminate a residence contract if the resident breaches that contract or the residence rules, subject to compliance with any procedures for giving notice of intention to terminate the residence and for termination of the contract, specified under an applicable code or the residence contract: s 59(1) of the Act.
An administering body is relevantly defined in s 3(1) of the Act as the person by whom, or on whose behalf, the retirement village is administered and includes a person who is the owner of land within the retirement village.
A 'residence contract' is relevantly defined under s 3(1) of the Act as a contract or agreement which creates or gives rise to a right to occupy residential premises in a retirement village, and may take the form of a licence.
'Residence rules' is defined under s 3(1) of the Act as the rules with which residents of a retirement village are expected by the administering body to comply, but does not include any prescribed subsidiary legislation (to which residents are subject) in force under any prescribed Act.
A residence contract binds successors in title of the owners as if the successors had also entered into the contract: s 17(1) of the Act.
The Tribunal can only make an order terminating the contract under s 59(1) of the Act if satisfied that:
a)the breach, in the circumstances of the case, is such as to justify termination of the contract; or
b)persistent breaches by the resident are, in the circumstances of the case, such as to justify termination of the contract; or
c)having considered the circumstances of the case, it is otherwise appropriate to do so.
If the Tribunal makes an order terminating the contract, the Tribunal:
a)shall fix a date by which the resident must vacate the residential premises occupied by the resident (s 59(3) of the Act); and
b)may make an order for the payment or refund of money by an administering body to a resident or by a resident to an administering body (s 59(4) of the Act).

Fair Trading (Retirement Villages Interim Code) Regulations 2020

The Fair Trading (Retirement Villages Interim Code) Regulations 2020 (WA) (Regulations) establish an interim code of practice that applies in relation to retirement villages, and was applicable at the time that the owner gave notice to the resident of its intention to seek termination of the contract.
Regulation 34(1) of the Regulations provides that notice of intention to apply to terminate a resident's contract under s 59 of the Act must be given to the resident at least 10 working days before making the application. Regulations 34(2)(b), 34(2)(c) and 34(2)(d) of the Regulations prescribe the matters to be contained in such notice.
Under reg 3 of the Regulations, the general principles guiding all those involved in the provision of retirement villages and related services include:
a)the well-being and interest of residents must be given due consideration (para (a)); and
b)the relationship of residents with their family, taking into account the cultural, religious and linguistic background of each resident (para (c)).

The contract

Under clause 5(b) of the contract, the Trust granted to the resident a non-exclusive licence to occupy her unit on specified conditions, including relevantly:
a)The resident must permit a Trust representative to enter at all reasonable times to carry out or assist the resident to carry out any maintenance work on the unit that may from time to time be required, or to check the need for maintenance work.
b)The resident must always comply with the terms of her agreement and the Rules.
The licence to occupy the unit is granted personally to the resident and may not be transferred to another person by the resident (clause 5(j) of the contract), and nothing in the contract creates any lease or tenancy in favour of the resident: clause 5(l) of the contract.
The resident must not permit any other person(s) to occupy the unit, without the prior written permission of the Trust: clause 5(k) of the contract.
The resident will act in accordance with her general duty of care towards other residents, staff and visitors: clause 5(m) of the contract.
The resident will do nothing to interfere with the quiet enjoyment of other residents in the village: clause 5(n) of the contract.
The term 'general duty of care' is defined in clause 1 of the contract as 'the duty all people have to each other to avoid doing anything which would foreseeable (sic) cause harm to any other person (including physical, emotional/psychological and financial harm)'.
The term 'occupy' is not defined in the Act, but it is clear pursuant to clauses 5(j) and 5(l) of the contract that it is confined to a licence, and does not create any leasehold or tenancy interests. On that basis, the relevant ordinary meaning of the term 'occupy' under the Macquarie Dictionary Online (as at 13 January 2022) is '1. to take up (space …)'.
The term 'Rules' is defined in clause 1 of the contract as 'the rules and resolutions for the village contained in the Fifth Schedule as amended under this Agreement'.
Under clause 7 of the contract, the resident must accept and comply with the rules, which is stated as having been adopted to help maintain an acceptable quality of life for all in the village. It also provides that the rules may be changed in accordance with the amendment provision in the rules.
The Fifth Schedule provides that the object of the rules is to promote harmonious community living and good relations between residents of the village.
Rule (c) provides that residents and their visitors must not make noise that interferes in any way with other residents and at no time shall play a musical instrument, radio or television in a way that becomes a nuisance to other residents.
The rules also provide that any rule, including the rule regarding amendment of rules, may be amended by:
a)the Trust, provided that the residents are consulted and notice of the intended amendment is given to residents one month prior to its coming into effect; or
b)a two-thirds majority of those present at a residents' meeting, provided notice of the meeting date and the amendment to the rules is given to the residents one month prior to the meeting. However, the Trust has an obligation under Western Australian retirement villages' legislation to vet any such amendments to ensure that the rights of all residents are safeguarded and as such residents' amendments to the rules are subject to the approval of the Trust.
Clause 4 of the contract provides that the Trust levies a premium to contribute to the capital costs associated with the unit and the village, and a maintenance levy based on the budgeted operating costs for the village.

Primary Issue - whether the resident has breached the residence contract and/or the residence rules such as to justify termination of the contract

Secondary issue - What are the terms of the contract and/or rules?

I find that the terms of the contract are comprised in the contract which was signed by the resident, and is binding on the resident.
By virtue of s 17(1) of the Act, the contract binds the owner as successor in title upon acquiring ownership of the village on 23 October 2018.
The documents filed by the owner do not make clear whether the rules were amended in 2016 and 2019 by the owner with one month's notice to residents of the amendments, or by a two-thirds majority of those present at a residents' meeting with one month's notice to residents of the amendments. There are no documents filed as to when residents were notified of the amendments, or when the amendments were to take effect.
As the resident challenges the effectiveness of the 2016 amended rules and the 2019 amended rules, I find that there is insufficient evidence of the 2016 amended rules and the 2019 amended rules becoming effective to amend the rules.
However, even accepting the resident's challenges to the adoption of the amended rules, for reasons set out below, I am satisfied that the resident has breached the terms of the contract and the rules such as to justify termination.

Secondary issue 2 – Did the resident breach the terms of the contract and/or the rules?

For the reasons that follow, I find that the resident has breached the terms of the contract, namely, clauses 5(b), 5(k) and 5(n) of the contract. I also find that the resident has breached rule (c) of the rules.
Save for Ms Richardson, the evidence of the resident witnesses is uncontroverted and is consistent with the evidence of complaints and reports in the testimony of Ms Adams, Ms Spaziani and Ms Stockmann.
Such evidence was not successfully challenged in cross-examination, nor were any witnesses called by the resident to contradict such evidence by direct evidence. In the main, I consider Ms Alder's evidence to be of limited effect to contradict such evidence as she does not reside in the village and was not witness to the incidents the subject of the resident witnesses' testimony.
The veracity of the evidence of Ms Adams, Ms Spaziani and Ms Stockmann evidence is not challenged.
Thus, subject to the reservations expressed about Ms Richardson's evidence, I accept the evidence of all the witnesses called on behalf of the owner of the behaviour and the actions of the resident.
Based on such evidence, and her criminal convictions for assault against Mr Davis and for breaches of the restraining order granted in his favour, the behaviour and actions of the resident overwhelmingly establish persistent breaches by the resident over her tenure of occupancy at the village.
Firstly, she has breached the rule relating to noise in rule (c) of the rules and clause 5(n) of the contract with her persistent conduct in shouting and swearing in English, or otherwise making noise such as slamming garbage bins, which has interfered with the quiet enjoyment of the other residents in their units and whilst in common areas in the village.
The resident witnesses are consistent in their evidence that they have not had peaceful enjoyment of their units or their time in the village.
Even by Ms Alder's concession, the resident has a strong voice and uses English swear words.
To the extent that her shouting and yelling is attributable to her hearing loss, her refusal to use a hearing aid in the face of numerous noise-related complaints is not a reasonable excuse for breaching of the noise rules.
Secondly, her aggressive and intimidating behaviour has obstructed maintenance staff or contractors, as representatives of the Trust and (then) the owner, from carrying out maintenance work on her unit, contrary to clause 5(b) of the contract.
Thirdly, I find that she has acted in a confrontational, aggressive and intimidatory manner towards other residents, such as shouting and swearing expletives at them, following them when they leave their respective units, banging on their bins, and in the case of Mr Davis, spraying him with a hose on three occasions and spraying his outdoor furniture on another occasion.
Such behaviour would foreseeably cause physical, emotional or psychological harm (and in the case of Mr Davis, possibly financial harm), and have otherwise interfered with their quiet enjoyment, in breach of clause 5(b) of the contract.
Fourthly, Mr Adrade's regular overnight visits that can stretch over three nights clearly constitutes occupancy of the unit within its ordinary meaning for which the resident is required to seek the owner's prior written permission under clause 5(k) of the contract. Her continued failure to do so constitutes a breach of that contractual provision.

Secondary issue 3 - is it justified to terminate the contract?

I agree with Fremantle Police and the owner that the inordinate police interventions in what is essentially a residential dispute between two people is not an appropriate use of police resources.
Not only have police resources been spent mediating and managing this dispute and the resident's behaviour, but the City's resources and now the owner's resources have also been expended, which could be better directed towards the maintenance and management of the facilities in the village.
I am also satisfied that there has been persistent and wilful breaches of the rules and contract by the resident, and despite the various efforts of the owners involved, these breaches have persisted over the years.
I find that the resident's behaviour has affected, and continues to affect, the health and well-being (at the worst case) or the peaceful enjoyment (in the best case), of at least some of the residents in the village.
In the absence of any underlying psychiatric or mental condition to excuse her behaviour, her inability to change her behaviour despite the best efforts of the owners and managers of the village over the last 14 years, as well as her four criminal convictions, point to a fundamental failure to accept or appreciate the impact of her behaviour on the other residents.
This lack of insight gives me no confidence that she has the capacity to change her behaviour in the foreseeable future.
Without such fundamental changes, I agree with the owner that the ongoing conflict and impact on the peaceful enjoyment or health and well-being of the other residents will persist into the foreseeable future, which is clearly untenable.

Victimisation

It has been submitted on behalf of the resident, by way of justification, that she has felt victimised by the Trust and/or the owner in the lack of maintenance or capital works in her unit, as her financial contributions and fees have not being directed towards works to her unit. However, clause 4 of the contract clearly contradicts the resident's understanding and expectation of the purpose of her financial contributions.
It has also been submitted that the resident has felt victimised in relation to other actions taken by the owner, such as restricting access to the outdoor tap and reacting only to complaints by other residents, and that the owner has not acted fairly towards the resident by not recognising her linguistic background.
Whatever dissatisfaction or complaint the resident may have against the owner, I am not satisfied that it justifies her behaviour towards the other residents. It was open for the resident to complain and take action against the owner, but it does not justify breach of the residence rules, with which the resident has promised to comply so as to help 'maintain an acceptable quality of life for all in the village' and which object is to 'promote harmonious community living and good relations between residents'.
Further, to the extent that she has behaved in an intimidatory or aggressive way to maintenance staff or contractors such that they were unable to complete or investigate maintenance works, the resident can hardly then complain about the lack of maintenance works to her unit.

Mr Davis' conduct

It has also been submitted on behalf of the resident that her actions are a direct result of the antagonism, provocation or other contributory conduct by Mr Davis, who is just as complicit in the conflictual environment in the village and against whom termination proceedings should have been commenced.
Mr Davis did not appear as a witness in these proceedings, so it has not been possible to directly test the resident's contentions against him.
What is clear from the documents summonsed from the Fremantle Police and the City is that, whilst Mr Davis' conduct has been provocative in nature, the resident has nonetheless reacted in a way that has disturbed the peace for other residents in the village and, on specific occasions, has resulted in criminal convictions.
As the 'common denominator' at the vortex of the complaints received by the owner, it is reasonable for the owner to seek to resolve the conflictual environment in the village by applying for termination of the resident's contract rather than Mr Davis'.

Impact on resident

I accept that the termination of the contract may have a deep impact on the resident, as she may have limited financial resources to re-locate to another property. However, I note that the previous offers have included re-locating her to alternative community housing, which have regrettably been met with refusal.
In the face of her rejection of such compromise, there are no other options for the owner but to pursue termination to resolve the longrunning conflict and the impact on the village. I accept this is the only solution to resolve this issue which is justified in all the circumstances, and will make the order sought.
I will however make an order fixing a date three months from this termination order by which the resident must vacate the premises to allow her sufficient time to find alternative accommodation. I will also order that the owner pay an amount equivalent to the refund of the premium that she would have been entitled to upon termination of the contract under clause 4.2 of the contract (that is, $81,400).

Conclusion

For reasons set out above, I find that the persistent breaches of the rules and the contract are, in the circumstances of the case, such as to justify termination of the contract.
I will allow the application, and make orders terminating the contract, requiring the resident to vacate her unit by 13 April 2022, and requiring the owner to pay the resident $81,400.

Orders

The Tribunal makes the following orders:
1.The application is allowed.
2.The residence contract between the applicant and the respondent dated 18 December 2007 is terminated.
3.The respondent must vacate Unit 5 of the Tapper Street Mews Retirement Units (at 4, 6, and 8 Tapper Street, White Gum Valley) by close of business 13 April 2022.
4.The applicant must pay the resident $81,400, which represents the refund of the premium that she would have been entitled to upon termination of the contract under clause 4.2 of the residence contract.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS K Y Loh, MEMBER
13 JANUARY 2022