Derek John Jones and Anor and Settlers Ridgewood Village Limited
[2005] WASAT 62
•13 APRIL 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: RETIREMENT VILLAGES ACT 1992
CITATION: DEREK JOHN JONES & ANOR and SETTLERS RIDGEWOOD VILLAGE LIMITED [2005] WASAT 62
MEMBER: MR T J CAREY (MEMBER)
HEARD: 10 DECEMBER 2004
DELIVERED : 13 APRIL 2005
FILE NO/S: RT 5 of 2004
BETWEEN: DEREK JOHN JONES
MAUREEN RUTH JONES
ApplicantAND
SETTLERS RIDGEWOOD VILLAGE LIMITED
Respondent
Catchwords:
Retirement village - Existence and enforceability of residence contract - Jurisdiction
Legislation:
Retirement Villages Act 1992 (WA) s 3, s 17, s 19
State Administrative Tribunal Act 2004 (WA) s 3(1), s 11, s 17(1), s 47(3), s 167
State Administrative Tribunal Regulations 2004 (WA) r 28
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Self-represented
Solicitors:
Applicant:
Respondent:
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
MR T CAREY (MEMBER)
REASONS FOR DECISION
Application
This is an application under the Retirement Villages Act 1992 (WA) ("the Act"). It was commenced on 25 May 2004.
Application transferred to the State Administrative Tribunal
This application was originally made to the Retirement Villages Dispute Tribunal ("RVD Tribunal"). On 1 January 2005, the State Administrative Tribunal ("the Tribunal") commenced pursuant to s 7 of the State Administrative Tribunal Act 2004 (WA) ("SAT Act"). By virtue of s 167 of the SAT Act, this matter was transferred to the Tribunal. I have been nominated to constitute the Tribunal pursuant to s 11 of the SAT Act.
In accordance with the transitional provisions in Reg 28 of the State Administrative Tribunal Regulations 2004 (WA), the matter is taken to have commenced in the Tribunal. The Tribunal may have regard to any record of the former adjudicator.
On 3 November 2004, a hearing occurred before Mr R Kronberger, who was then referee of the RVD Tribunal.
Mr Kronberger was not able to complete his determination and publish a decision prior to cessation of his authority. Since the Tribunal commenced operations, it has had a number of transitional matters including this with which it has been required to deal.
The hearing before the former referee was concerned with the substantive application and also a jurisdictional issue raised by the respondent, which is a matter to which I will return in these reasons. A transcript of the hearing is among the papers to which I have had regard.
Applicants
The applicants are the offerors under an agreement to lease dated 27 January 2004 ("agreement for lease") made between them and the respondent, Settlers Ridgewood Village Limited, in respect of a residence and car bay at "Ridgewood Rise" Retirement Village which is situated at Lot 714 Ridgewood Boulevard, Ridgewood, Western Australia. The respondent is an "administering body" as defined in s 3(1).
The residence and car bay had not been constructed as at the date of the contract.
Representation
The applicants represented themselves.
The respondent sought the leave of the former referee to be represented by a legal practitioner, but this was refused in light of the applicants' objection and s 47(3) of the Act as it then stood. The RVD Tribunal allowed the respondent to be represented by its secretary, Mrs Sandra McGuire.
Order sought
The applicants applied for an order in the following terms:
"To fulfil obligations of contract"
in circumstances in which they claimed
"We had a verbal contract with Dale Putland, if we chose a block and house we could secure both for the price of $179,250 until the end of the year (2004). A month after signing the contract we were advised by Sandra McGuire the price had increased to $239,347 we were threatened with legal proceedings if we do not sell our house within 60 days."
Mr Dale Putland is the respondent's salesman with whom the applicants dealt.
Documents
On 18 December 2003, the applicants signed and delivered to the respondent an "Application to Reside at 'Ridgewood Rise' ". It was expressed as an application:
"for approval to be granted a lease for the Residence and Car Bay in Ridgewood Rise …"
as set out in the schedule to that application.
The application included an acknowledgement that:
"If my/our application is approved, I/we shall be eligible to become residents of Ridgewood Rise and the Lessor will supply me/us with
•all disclosure documentation required by the Retirement Villages Act 1992 and the Interim Code of Fair Practice for Retirement Village 2002, including a copy of the Lease; and
•an Agreement to Lease for my/our consideration."
The schedule referred to "Residence No 14 and Car Bay No 14" and to a lease loan to be offered, the amount being $179,250.
A "reservation payment" of $500 was made with the application.
The agreement to lease was expressed as an offer by the applicants to take from the respondent:
"a Lease of the Residence described in item 1 of the Schedule to this Offer …"
and
"(a)on the terms and conditions of the lease supplied on 18 December 2003; and
(b)on the basis of specified payments."
The agreement to lease included:
" … This Offer is made on the basis that the Agreement to Lease that will come into existence if the Offeree accepts this offer will be subject to and conditional upon the following conditions subsequent being satisfied:
(a)The sale and settlement of the sale of the Offeror's property (called the 'Sale Property') for the sale price and by the date all as described and specified in item 2 of the Schedule to this Offer.
(b)The Western Australian Planning Commission approving the grant of the Lease of the Residence to be granted pursuant to this Offer under Section 20 of the Town Planning and Development Act 1928."
The schedule to the agreement for lease was as follows:
" … SCHEDULE
Item 1. The Residence
Residence No 14 Including Car Bay No. 14
Item 2. Sale Property, Price and Latest Settlement Date.
The Sale Property is 8 Pattani Court Mindarie
The sale price for the Sale Property is $ T.B.A. or such lesser amount as is acceptable to the Offeror(s)
The latest date for settlement of the sale of the Sale Property is the T.B.A. day of T.B.A ..."
The letters "T.B.A." were an abbreviation of "To be advised".
On 19 May 2004 the respondent's solicitors served a notice of default on the applicants. The notice referred to the agreement to lease as the "Contract" and stated that:
"The Contract is conditional upon the sale of the Offerors' property at 8 Pattani Court, Mindarie (the 'Pattani Court Property') by a date and for a sale price to be advised by the Offerors"
The notice asserted that the applicants had defaulted in the following respects:
" …
1. The Offerors have failed in accordance with their obligations under the Contract to advise the Offeree within a reasonable time after acceptance of their offer by the Offeree on 27 January 2004 of:
(a)the reasonable sale price for which the Pattani Court Property is to be marketed for; and
(b)the reasonable date by which a sale of the Pattani Court Property must be settled.
2.The Offerors have failed in accordance with their obligations under the Contract to take reasonable steps to sell the Pattani Court Property for a reasonable sale price …"
The notice required the applicants to remedy those defaults by:
" … advising the Offeree by written notice:
(a)of the reasonable sale price for which the Pattani Court Property is to be marketed for; and
(b)of the reasonable date by which a sale of the Pattani Court Property must be settled being not later than sixty (60) days after the date of service of this Notice on the Offerors;
and
making all reasonable efforts to sell the Pattani Court Property for the reasonable sale price specified by the Offerors for that property and by advising the Offeree in writing of the nature of those efforts."
Mr Jones gave evidence of discussions he and his wife had with Mr Putland before the documents were signed. According to that evidence, in the course of their first meeting, the applicants expressed interest in acquiring one of the new residences, subject to some alterations. In a second meeting with Mr Putland, they asked when the residence would be built. They were advised that it would be in February 2003. Mr Jones stated:
"we explained that we go away every year up north until September and we cannot sell our house until October – by the end of October …"
After further discussions, the applicants selected a site within the village.
Mr Jones gave evidence that Mr Putland told him the residence to be constructed on that site would not be completed until the following December or January. Mr Jones said that his response was
"… Okay, we can sign because we know we can put our house on the market at the end of the year …"
He claimed that he told Mr Putland that if completion was going to be any earlier than December or January they couldn't go ahead, and that Mr Putland assured him about the time of expected completion. The applicants told Mr Putland that they would be back in Perth in September 2004.
By the time of their return in September 2003, Mr Putland was about to leave the respondent. He was succeeded as the respondent's sale person by Ms Elaine Morris. Mr Putland advised the applicants, which Ms Morris confirmed, that the price had been increased to almost $240,000. The applicants relied upon the signed agreement to lease. In March 2004, Ms Morris advised the applicants that it would be necessary for them to find the money within a limited time-frame.
The applicants are prepared to proceed with the lease agreement, but only on the basis of the originally agreed "lease loan" figure of $179 250. The respondent is not prepared to proceed on that basis.
Jurisdictional issue
The respondent submitted that the RVD Tribunal had no jurisdiction under the Act to deal with the application because, it argued, there existed neither a "residence contract" nor a "service contract" as defined in s 3 of the Act as between the applicants and the respondent. As a consequence, the agreement to lease was not subject to subsection 17 or 19 of the Act which deal with limitations on termination of residence contracts and enforcement of rights under service contracts respectively.
In relation to its argument that there is no residence contract, the respondent referred to the definition of "residence contract" under s 3 of the Act, which requires a contract, agreement, scheme or arrangement to "create or give rise to" a right to occupy residential premises in a retirement village. The respondent's argument is that the agreement to lease promised the grant of a lease in the future, dependent upon the satisfaction of certain conditions, and this did not create or give rise to a right of occupation. Only a lease of the residence would do this.
I do not consider it necessary to refer to the respondent's argument in relation to service contract, there being no suggestion of any relevant service contract.
As indicated earlier, the applicants have never had any legal representation. In response to a question by the former referee at the hearing inquiring as to whether he had any response to the respondent's submission on jurisdiction, Mr Jones said that "once an agreement in signed you are covered under the Act". I think a reasonable restatement of the response is that the signed agreement to lease did give rise to a right to occupy residential premises in a retirement village, and therefore the limitations on termination of a residence contract imposed by s 17(1) applied.
Consideration of jurisdictional issue
I do not accept the respondent's argument that the agreement to lease did not give rise to a right of occupation. In my view, it clearly did, albeit a conditional right, the condition being the sale of the applicant's house for an amount and by a date to be advised.
That does not determine the jurisdictional issue matter, however. The service of the notice of termination, at the very least, brought a time perspective to the performance of the condition which was not satisfied, in consequence of which the respondent purported to terminate the agreement to lease. The applicants claim that the purported termination was ineffectual and that the parties continue to be bound by the agreement to lease, and seek the Tribunal's affirmation in that regard.
The jurisdiction of the Tribunal is limited by the terms of the SAT Act and the enabling legislation, in this case the Act. There is nothing in either of those Acts which vests in the Tribunal authority or jurisdiction to deal with and determine threshold questions of enforceability of residence contracts, as distinct from the operation of and termination of such contracts. As illustration, s 17(1) of the Act provides for limited circumstances in which a right of occupation under a residence contract might be terminated; it says nothing about determining whether or not a residence contract exists or is enforceable. Such questions are for the courts, not this Tribunal, to determine.
In the circumstances, the application must be dismissed.
Order
The Tribunal orders that the application be dismissed for lack of jurisdiction.
I certify that this and the preceding nine pages comprise the reasons for decision of the Tribunal.
________________________
Mr T CAREY
Member
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