DICKINS v SOUTHERN CROSS CARE (NSW & ACT) (Retirement Villages)
[2016] ACAT 13
•4 March 2016
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
DICKINS v SOUTHERN CROSS CARE (NSW & ACT) (Retirement Villages) [2016] ACAT 13
RV 1 of 15
Catchwords: RETIREMENT VILLAGES – whether representatives of the respondent harassed and intimidated the applicant – whether air conditioner in the premises was a fixture – method of calculation of recurrent charges
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 (ACT) s 32
Retirement Villages Act2012 (ACT) ss 5, 6, 63, 91, 99, 139, 140 141, 142, 143, 144, 146, 150, 159, 160, 161, 162, 163, 164, 165, 166, 167, 167, 168, 170, 171, 173, 181, 219, 503V
Retirement Villages Act 1999 (NSW) ss 163, 92
Subordinate
Legislation:ACAT Civil and Administrative Tribunal Procedural Rules 2008 r 9
Retirement Villages Regulation 2013 (ACT), ss 25, 26 31, 35, 36, 38, 26
Retirement Villages Regulation 2000 (NSW) ss 5, 11
List of
Texts/Papers cited: Butler, Susan (ed), Macquarie Dictionary (online ed, at 27 January 2016)
Pearce and Geddes, Statutory Interpretation in Australia (8th ed, 2014)
Tribunal: Senior Member W Corby (Presiding)
Senior Member M Sinclair
Date of Orders: 4 March 2016
Date of Reasons for Decision: 4 March 2016
ACT CIVIL & ADMINISTRATIVE TRIBUNAL RV 1 of 2015
BETWEEN:
Sheena Dickins
Applicant
AND:
Southern Cross Care (NSW & ACT)
Respondent
TRIBUNAL: Senior Member W Corby (Presiding)
Senior Member M Sinclair
DATE:4 March 2016
ORDERS
Consent orders:
Pursuant to sub-section 91(d) of the Retirement Villages Act 2012 (the RV Act), the respondent is to provide to the applicant within 14 days of the date of this order a copy of the FY2012-2013 and FY2013-2014 annual safety inspection report for the village where the applicant resides (‘the village’).
That any notice that the respondent gives to the applicant, subsequent to the date of this order, amending the recurrent charges payable by the applicant must comply with the requirements of the RV Act and Retirement Village Regulation 2013 (RV Regulations) and must refer to only the recurrent charges amount payable by the applicant.
That in relation to the amount of recurrent charges appearing in the FY2015-2016 proposed annual budget the respondent is to provide to the applicant and the other residents of the village within 14 days of the date of this order details of the method of calculating the recurrent charges.
The Tribunal Orders:
Within 14 days of this order the respondent is to provide to the applicant and the other residents of the village details of the method of calculating the apportionment of the expenditure amount of $288 for motor vehicles set out in the FY2015-2016 proposed annual budget for the village.
The respondent is to pay the applicant the sum of $2,390 being the reasonable costs incurred by the applicant in replacing the air conditioner pursuant to section 139(3) of the RV Act.
The respondent is to pay interest, at the Magistrates Court pre-judgment interest rate, calculated from 31 July 2014 until 4 March 2016 namely $240.01, on the amount of $2,390. The respondent is to pay the total amount of $2630.01
The respondent is to pay the amounts in orders 1, 2 and 3 within 14 days of the date of this order. If the respondent fails to pay the full sum owed to the applicant (by direct deposit into her nominated account) within 14 days of the date of this order, then the respondent is to pay post judgment interest on so much of the amount of these orders as remains from time to time outstanding, calculated from the day following the date of this order, until the ordered amount is paid in full.
The respondent is directed to include in the quarterly accounts that it is required to provide to the residents of the village, subsequent to 30 June 2015, details of payments into and out of the capital works fund of the village which occurred during the quarter.
The respondent is directed to comply with regulations 35(1)(g) and 36(1)(e) of the RV Regulations in relation to the FY2015-2016 proposed annual budget for the village. The respondent is to provide:
(a)the respondent’s total ‘head office’ expenditure figures including details of the expenditure that is, and is not, included; and
(b)details of the respondent’s method of calculating the weighting and percentage figure used by the respondent in calculating the apportionment of the respondent’s ‘head office’ expenditure that is included in the village’s FY2015-2016 proposed annual budget.
Subsequent to 30 June 2015, when preparing a proposed annual budget for the village, if the respondent includes expenditure for ‘head office’ costs calculated as an apportionment of the respondent’s total expenditure, then the respondent is to comply with regulations 35(1)(g) and 36(1)(e) of the RV Regulations. The respondent must include the information referred to in orders 6(a) and 6(b) of these orders and any other information necessary to comply with the RV Act and Regulations.
By 18 March 2016, the respondent pay to the operating accounts of the:
(a)George O’Neil Court village the sum of $650 (being the cost of 5 smoke alarms); and
(b)Haseler Court village the sum of $520 (being the cost of 4 smoke alarms).
Within 14 days of the date of this order, in relation to concreting work, the Respondent is to pay to the capital works fund of the:
(a)George O’Neil Court village, $1,000; and
(b)Haseler Court Village, operated by the respondent, $800.
The respondent is to pay, within 14 days of the date of this order, to the capital works fund of George O’Neil Court village $4,282.82 in relation to an amount paid for guttering work that was carried out at another village that the respondent operates.
………………………………..
Senior Member W Corby
for and on behalf of the Tribunal
REASONS FOR DECISION
Sheena Dickins (the ‘applicant’) is a resident of the George O’Neil Court retirement village in Braddon, ACT (the ‘village’) operated by Southern Cross Care (NSW & ACT) (the ‘respondent’ or the ‘Operator’). There are 5 units in the village. Each unit has one (1) resident.
The applicant has applied to the ACT Civil and Administrative Tribunal (‘ACAT’) for orders pursuant to the Retirement Villages Act 2012 (ACT) (the ‘RV Act’) to address the respondent’s failure to meet its obligations under the RV Act and Retirement Villages Regulations 2013 (ACT) (the ‘RV Regulations’).
The respondent denies that it has failed to meet its obligations under the RV Act and Regulations and/or says that ACAT does not, in relation to some of the orders sought, have jurisdiction to make the orders.
In these reasons for decision a reference to the ‘tribunal’ or ‘ACAT’ refers to the ACT Civil and Administrative Tribunal generally and a reference to the ‘Tribunal’ refers to the members who heard the matter.
The matter was heard over four days on 29 and 30 October and on 19 and 20 November 2015. At the conclusion of the matter on 20 November 2015 the Tribunal reserved its decision.
At the commencement of the hearing, and based on the documents filed by the applicant prior to 29 October 2015, the applicant sought that the Tribunal make 47 orders. During the hearing the applicant said she would not pursue some of these orders and those were withdrawn. No evidence was given in relation to the withdrawn orders and the Tribunal did not further consider them.
During the hearing some matters were agreed and consent orders were recorded (the ‘consent orders’).
In relation to the applicant’s application for orders which were not withdrawn and were not the subject of a consent order, the Tribunal has made orders. These reasons for decision set out the Tribunal’s reasons for making, or not making, orders in relation to contested matters.
The hearing
The applicant attended the hearing on all four days. She was represented by Pamela Graudenz and Southern Warren Colledge. The applicant provided a power of attorney for each of her representatives. Both are members of the ACT Retirement Village Residents Association Inc.
At the commencement of the hearing on 29 October 2015 the applicant tendered a medical certificate from Dr Jacqueline Lowe dated 27 April 2015[1] in support of a submission that the ‘stress’ of participating in the hearing would affect a ‘medical condition’ suffered by the applicant and therefore the applicant would not be able to actively participate in the hearing or give evidence. The Tribunal advised the applicant that this restriction on her involvement in the hearing, in so far as it impacted on the respondent, may have an impact on the weight that the Tribunal could give to some of the evidence relied on by the applicant. Notwithstanding the applicant’s submission and the medical certificate, the Tribunal observed that, other than being absent for several short periods, the applicant was present throughout the hearing. The applicant actively participated in the hearing by providing relevant information to the Tribunal. The applicant gave evidence and answered questions. The Tribunal formed the view that neither the applicant nor the respondent was disadvantaged by any restriction on the applicant’s ability to participate in the hearing that her medical condition may have caused.
[1] Exhibit A1
Nathan Avery-Williams of counsel appeared for the respondent. Two of the respondent’s employees, Godwin D’Amato – General Manager of Retirement Living, and Narelle Holt – Regional Manager, attended and gave evidence. Mr D’Amato also made written statements that were tendered by the respondent.
Respondent’s application for interim or other orders dated 26 October 2015
Before the commencement of the hearing on 29 October 2015 the respondent applied for interim orders[2] that:
(a)the applicant’s application be dismissed pursuant to section 32(2)(b) of the ACT Civil and Administrative Tribunal Act 2008 (the ‘ACAT Act’);
(b)the applicant be prevented, pursuant to section 32(2)(c)(ii) of the ACAT Act from bringing a subsequent application without leave; or
(c)in the alternative that the bundle of documents known as ‘Folder 1’ filed in ACAT by the applicant be rejected as an abuse of process pursuant to Part 5 Rule 9 of the ACAT Civil and Administrative Tribunal Procedural Rules 2008; and
(d)the applicant pay the respondent’s costs on an indemnity basis.
[2] The respondent’s written application for orders was filed on 26 October 2015 pursuant to orders made on 23 October 2015 at a directions hearing
The Tribunal concluded that:
(a)in its written response the respondent conceded that some of the applicant’s assertions in relation to failure by the respondent to meet its obligations under the RV Act and RV Regulations were, at least in part, correct;
(b)based on the Tribunal’s preliminary reading of the materials filed by the parties, there were matters in dispute between the parties which, if the Tribunal were to accept the applicant’s version of the facts, may result in an order being made in the same or similar terms as that sought by the applicant.
The Tribunal concluded that the applicant’s claim was not frivolous, vexatious or without substance.
The information filed by the applicant in support of her application was collated in a way that was logical and ordered. The applicant provided schedules which identified and cross-referenced page numbers, document numbers, dates and descriptions and referred to this information in the written submissions filed in support of the orders sought. Where the applicant had, in response to directions made by ACAT in preparing the matter for hearing, resubmitted material filed previously, the applicant clearly identified why and what written information and documents had been previously provided. The Tribunal did not have any difficulty navigating the information filed by the applicant. Without deciding whether the information would ultimately be relevant or persuasive, the Tribunal considered that the applicant’s documentation was well and usefully presented and no part of the documents filed by the applicant should be rejected.
The Tribunal dismissed the respondent’s application dated 26 October 2015 for interim orders 1, 2 and 3 and made no order as to costs in response to the respondent’s application for interim order 4.
Information relied on by the Tribunal
In its consideration of this matter the Tribunal relied on:
(a)the documentation filed by or on behalf of the parties with ACAT;
(b)the written and oral evidence tendered or given by or on behalf of the parties at the hearing;
(c)the written and oral submissions made by or on behalf of the parties both prior to and at the hearing;
(d)the relevant legislative provisions. These are set out in Schedule 1 attached to these reasons for decision.
Annexed at Schedule 2 is a list of the documents tendered as Exhibits.
Consent orders and Tribunal orders in relation to contested matters
The applicant provided a summary of the orders sought. That summary is attached at Schedule 3 to these orders. In these reasons the Tribunal will refer to the order number allocated by the applicant as set out in the summary at Schedule 3. As noted, the applicant did not pursue all of the originally sought orders.
Consent orders
The orders that were made by consent during the hearing are set out above under the heading ‘Orders’ as ‘Consent orders’. Some of the background to the agreement between the parties, and that is relevant to those consent orders, is discussed below.
Contested matters – Tribunal orders
Where the parties did not agree to orders, the Tribunal’s orders and reasons are set out below. All the orders made are set out above.
Orders 1 & 2 sought by applicant – no order made
The applicant sought an order that the respondent acknowledge its responsibility pursuant to section 99(1) and section 99(2)(a) and (e) of the RV Act, and cease all forms of intimidation, harassment and humiliation of the applicant.
The applicant provided evidence of events involving representatives of the respondent and matters raised, or statements made, in documentation prepared by representatives of the respondent; that she submits were in breach of section 99(1) and section 99(2)(a) and (e) of the RV Act.
The respondent denied that the actions or statements referred to by the applicant occurred as alleged and/or were in breach of section 99 of the RV Act.
The respondent further submitted that the RV Act and RV Regulations provided no basis for the Tribunal to make the orders 1 and 2 sought by the applicant.
Evidence relevant to the applicant’s request for Orders 1 and 2
A. The 16 December 2013 meeting at the village
The applicant provided evidence of her attendance at a meeting on 16 December 2013 at the village. The meeting had been arranged[3] by the respondent to discuss certain proposed works to be undertaken. The applicant and three of the four other residents who reside at the village attended the meeting. Mr D’Amato attended on behalf of the Respondent. About 20 minutes into the meeting the applicant handed a document[4] to Mr D’Amato. This document set out that the residents of the village had agreed that no decisions were to be taken at the meeting on 16 December 2013 as the residents had been given too little notice of the meeting and that they would require further written information including details of the proposed works, cost and method of payment before any decisions could be made.
[3] Exhibit A2
[4] Exhibit A3
The applicant said that Mr D’Amato expressed annoyance when the applicant handed him the note. In an email written to Ms Graudenz on 17 December 2013 the applicant said that a short time after that she ‘lost her temper’[5] and left the meeting.
[5] Exhibit A14
In evidence Mr D’Amato did not deny that he had expressed his frustration when the applicant handed him the note. He said he had travelled from Sydney for the meeting and had he been aware of the residents’ request as set out in the note he could have provided a response at, or prior to, the meeting. This is consistent with the information set out in the applicant’s email of 17 December 2013 to Ms Graudenz[6] and in a document dated 14 November 2014 [7] prepared by the applicant in relation to this and other matters.
[6] Exhibit A14
[7] Exhibit A7
The Tribunal notes that notwithstanding the matters set out in the note handed to Mr D’Amato at the 16 December 2013 meeting, the other three residents from the village who were present remained at the 16 December 2013 meeting after the applicant left. The residents who remained at the meeting ‘unanimously’ agreed to certain maintenance work being carried out. There was no evidence provided to the Tribunal from any of the other residents who attended the meeting.
The respondent submits that the applicant’s contemporaneous record of the events that occurred at the 16 December 2013 meeting, as set out in her email of 17 December 2013,[8] does not suggest that she felt harassed or intimidated. The Tribunal agrees with this submission.
B. Mr D’Amato’s email to the applicant dated 24 March 2014
[8] Exhibit A14
The applicant and other residents received a letter from the respondent, signed by the respondent’s representative Ms Holt, dated 11 March 2014[9] advising that urgent roof works were to be undertaken. The cost for the work of $5,360 was to be paid from the capital works fund of the village.
[9] Exhibit A4
The applicant submits that the roof leak had been an issue since 2007. When it rained, water leaked into her kitchen through the extractor fan over the stove and she had become so anxious about the possibility of electrocution that she turned the power to the stove ‘off’ whenever it was not in use. The applicant said that she regularly reported the problem when it occurred but was always told it would need to be delayed until it rained again so, whilst it was raining a contractor could undertake an inspections and identify the cause of the leak. Consequently when the applicant received the 11 March 2011 letter she was surprised that the issue was now identified as ‘urgent’. Given the cost and that payment was to be made from the capital works fund she considered that a further quote should be obtained before a decision about who was to do the work was made.[10] The applicant said she obtained a quote for $4,000 for the same work. She says the residents of the village accepted this alternative quote.
[10] Exhibit A7
The applicant said that without further notice from the respondent after 11 March 2014, on 24 March 2014 at about 8am a roof contractor knocked on her door advising that he was intending to commence work. The applicant advised him that the residents were obtaining additional quotes. The contractor then returned to his truck, made a phone call and had a conversation with someone – apparently Ms Holt – and then commenced work.[11]
[11] Exhibit A7
The applicant sent Ms Holt an email at about 9am on 24 March 2014 advising that an alternative quote had been obtained for roof work and that residents ‘will consider and vote’ on this quote in relation to roof work.[12] Ms Holt forwarded this email to Mr D’Amato who at 10:33am sent an email to the applicant.[13] Mr D’Amato states in his email states that the repairs are urgent, have been approved and that he is ‘disappointed’ the applicant is ‘obstructing’ the respondent’s ‘capacity to ensure the safety of buildings’. In the final paragraph he writes:
In the event that the works are delayed and damage is sustained to SCC or Resident property, SCC may consider taking action to recoup those losses.[14]
[12] Exhibit A6
[13] Exhibit A6
[14] Exhibit A6
The applicant said that she did not ‘obstruct’ the roof contractor but merely advised him that another quote was to be considered. She said she found the final paragraph of Mr D’Amato’s email[15] to be unjustified, unsettling and distressing. The applicant submitted it was intimidating and harassing.
[15] Exhibit A6
The respondent submits that neither the final comment nor anything else in the email was intimidating or harassing. It was a politely worded email and the suggestion that the respondent ‘may’ take legal action would not be considered by a reasonable person (‘Briginshaw’ test) as intimidating or harassing.
The applicant submits that the nature of the relationship between the applicant and the respondent and its representatives is not a normal business arrangement. The actions by the respondent (or its representatives) must be viewed in the context of the particular relationship, and in that context the statement appearing in the email from Mr D’Amato[16] could be, and was, considered by the applicant to be a ‘threat’ by the respondent. It was therefore intimidating and harassing.
[16] Exhibit A6
In the Tribunal’s view, the timing of Mr D’Amato’s email[17] is relevant. At the time that the applicant’s email, sent to Ms Holt at 9:11am on 24 March 2014,[18] was received by Mr D’Amato, the work on the roof had been authorised by the respondent and had commenced. The respondent was not aware, prior to the applicant’s email of 24 March 2014, that the applicant and other residents did not agree with the work being carried out, or that they had arranged for a further quote[19] Whilst the Tribunal accepts that the applicant did not, beyond her initial response to the contractor, take any further action to prevent the contractor undertaking the work, her email of 24 March 2014 could be interpreted as suggesting, from the applicant’s point of view, that the work should not proceed on that date.
[17] Exhibit A6
[18] Exhibit A6
[19] Exhibit A6
Without making any finding about the way in which the roof work that commenced on 24 March 2013 was authorised by the respondent, the Tribunal finds that it was not inappropriate for Mr D’Amato on behalf of the respondent in his email of 24 March 2014 to alert the applicant to the possibility that the respondent may take subsequent action if the roof work was obstructed by the applicant and as a result damage occurred.[20] The Tribunal is not satisfied that Mr D’Amato’s email is threatening, or is intimidating or harassing.
C. Respondent’s representative’s actions at the Annual Management Meeting on 10 November 2014
[20] The respondent may be able in those circumstances to seek compensation for that damage pursuant to sections 138(3) and 140(2)
The applicant submits that at the annual management meeting held 10 November 2014 she was the target of aggressive, vindictive and bullying behavior by Mr D’Amato and Ms Holt. The applicant prepared a document dated 14 November 2014 about the 10 November 2014 meeting.[21] This document was sent to Ms Graudenz. In this document[22] the applicant refers to previous incidents involving her and the respondent’s representatives which she says were raised at the 10 November 2014 meeting. In the 14 November 2014 document the applicant also discusses aspects of those previous incidents which were not addressed at the 10 November 2014 meeting. The applicant expressed the view that although some of the comments made at the meeting did not specifically identify her, she felt that they were directed at her. For example she writes:
…every time the word ‘obstructive’ was used GD’A [Mr D’Amato] looked at me! [23]
[21] Exhibit A7
[22] Exhibit A7
[23] Exhibit A7
The applicant’s document[24] identifies comments by Ms Holt, apparently made at the 10 November 2014 meeting, about an incident in about 2008 when the applicant, had failed to answer the door of her residence when Ms Holt had knocked. The applicant gave evidence that she was not home at the time. Apparently Ms Holt had on other occasions referred to this incident after it allegedly occurred in about 2008. The applicant has consistently denied that she was home and had failed to respond when Ms Holt knocked.
[24] Exhibit A7
Ms Holt did not deny that she mentioned this alleged incident at the meeting on 10 November 2014, but said that she had only done so in ‘response’ to concerns raised by the applicant at the meeting about the respondent’s performance. Ms Holt said she had raised the 2008 ‘incident’ to demonstrate that at times, despite its efforts, the respondent’s attempts to meet its obligations were not acknowledged by some residents.
Ms Graudenz attended the 10 November 2014 management meeting as proxy. Ms Graudenz prepared a document dated 28 November 2014 about the meeting.[25] In the penultimate paragraph[26] Ms Graudenz makes the comment that:
Throughout the meeting one of the residents present was singled out and subjected to a most aggressive attack by Godwin [D’Amato] and Narelle [Holt]. The resident was repeatedly accused of obstruction and interference.
[25] Exhibit A8
[26] Exhibit A8
Ms Graudenz confirmed at the hearing that the resident whom she is referring to is the applicant.
The Tribunal has considered the applicant’s evidence and submissions about the 10 November 2014 meeting. The operation of the RV Act by its stated objectives,[27] by the obligations it imposes on operators and by requiring that the operator ‘respect’ the ‘rights of residents’,[28] is intended to ensure that the operators actively and positively engage with residents in the management of retirement villages. This necessarily means that the respondent’s representatives must engage with residents, such as the applicant, in a positive and inclusive way and, specifically, proscribes conduct that is either intimidating or harassing.[29]
[27] RV Act s 6
[28] RV Act s 99
[29] RV Act s 99(2)(e)
The Tribunal is not satisfied that the conduct of the respondent’s representatives at the meeting on 10 November 2014, as described by the applicant or Ms Graudenz, was harassing or intimidating. However to ‘single out’ any resident at a meeting may, even if not intimidating or harassing, restrict rather than facilitate that resident’s participation in management of the retirement village. This would not be the approach of an operator that adopts best practice management standards. For example, it is difficult to provide any reasonable or acceptable explanation for someone to raise at an annual management meeting in 2014 an alleged incident in 2008 which had previously been denied by the resident.
D.Ms Holt’s telephone conversation with the applicant about the air conditioner on 7 July 2014
The applicant provided details about a telephone conversation she had with Ms Holt on 7 July 2014.[30] The conversation concerned an air conditioning unit in the applicant’s residence that broke down on 23 June 2014 and was to be replaced. The cost of the replacement unit is dealt with separately in these reasons for decision. The applicant submits that relevant to her request for an order by the Tribunal in relation to alleged ‘harassment and intimidation’ by the respondent’s representatives are two statements made by Ms Holt in the telephone conversation they had on 7 July 2014.
[30] Exhibit A9
There was a delay in replacing the air conditioning unit. Initially, on 1 July 2014, the respondent ‘ordered’ a replacement unit on behalf of the applicant. It was to be delivered on 8 July 2014 and the cost of $2,000 was to be paid by the applicant. When the applicant advised Ms Holt by email on 2 July 2014 that she could not pay the $2,000 on 8 July 2014, Ms Holt, without further consultation, cancelled the order. An arrangement was then made that the respondent would finance the cost of the replacement unit and the applicant was to repay the respondent. The unit was reordered on 4 July 2014. A contract about the repayment arrangement between the applicant and the respondent was to be drafted. On 4 July 2014 Ms Holt advised the applicant the repayment contract would be ready for signing on 9 July 2014 and that the ‘figures’ about the repayment agreement would be available on 7 July 2014.
When the applicant telephoned Ms Holt on 7 July 2014 she asked if she could sign the contract that day, Ms Holt advised she was not available on 7 July 2014. It was mid-winter. In the conversation the applicant said that she had been without heating for 15 days and that the cancellation of the initial order for the air conditioning unit was not at the applicant’s request, Ms Holt replied that:
Well you should know what is in your contract; and
If you were nicer to us we’d be nicer to you.
The applicant then hung up on Ms Holt and made alternative arrangements to finance the purchase of the air conditioning unit through a bank. She considered Ms Holt’s statements to be rude and vindictive. It is clear that the applicant was annoyed and her decision to make alternative finance arrangements was prompted by Ms Holt’s response.
The Tribunal finds that the statements made by Ms Holt in the telephone conversation on 7 July 2014 do not amount to intimidation or harassment. However the Tribunal repeats the general observations made in paragraph 45 above about how the respondent’s representatives should engage with residents.
E. Mr McMahon’s comments in his letter of 29 Aril 2014
The applicant submits that comments made by the respondent’s CEO, Mr McMahon, in an email dated 29 April 2014[31] further demonstrates the failure by the respondent to respect her rights[32] and to ensure that she lives in an environment free from harassment and intimidation.[33] Mr McMahon was responding to a letter dated 10 April 2013[34] from Ms Graudenz. In her letter Ms Graudenz raises concerns about expenditure in the proposed annual budgets for FY 2013-2014. She writes the letter in her capacity as President of the ACT Retirement Village Residents Association and concludes the letter with a request for a meeting to discuss the matters she has raised. She makes no reference to any particular resident in the letter.
[31] Exhibit A11
[32] Section 99(1) of the RV Act
[33] Section 99(2)(e) of the RV Act
[34] Exhibit 10
In his email response[35] Mr McMahon does not, for reasons he provides, consider that a meeting to discuss the matters Ms Graudenz has raised is necessary. In the email he makes the comments that:
…some residents … are very demanding.
…
…speaking generally here, some residents enjoy the cut and thrust of conflict and never seem happy about anything much. I expect my staff to be respectful, helpful and courteous to residents and hope for the same in return ..
…He concludes:
If a meeting would be helpful to talk about better communication with Sheena [Dickins – the applicant] and David [another resident] in particular, then along with Godwin [D’Amato] and Narelle [Holt], I would be happy to do so.
[35] Exhibit A11
The applicant submits that these statements are about her and are further evidence of the respondent’s failure to meet the requirements of sections 99(1) and 99(2)(e) of the RV Act.
The respondent submits that the first two statements are not directed at any particular resident and indeed Mr McMahon prefaces the second statement with the note that he is ‘speaking generally’.
The respondent further submits that there is no suggestion, in Ms Graudenz’s response dated 16 May 2014[36] to Mr McMahon’s 29 April 2014 email, that she or the applicant was concerned about intimidation or harassment of the applicant.
[36] Exhibit A12
As the email from Mr McMahon is sent to Ms Graudenz in response to a letter from her, the Tribunal is not satisfied that it provides a basis for the order sought by the applicant. The Tribunal would endorse the comment made by Mr McMahon, in his email of 29 April 2014, that he expects the respondent’s representatives to be ‘respectful, helpful and courteous to residents’. The Tribunal accepts that section 99 of the RV Act provides an opportunity for residents to seek orders requiring compliance with the provisions of that section. However, the Tribunal is not satisfied that Mr McMahon’s general comments to Ms Graudenz, nor the final paragraph of his email offering to meet with the applicant and another resident, demonstrates a failure by the respondent to meet its obligations under section 99 of the RV Act.
F. Minutes of Annual Management Meeting 10 November 2014
The applicant also referred to the failure by the respondent in drafting the minutes of the annual management meeting on 10 November 2014 to name her as an attendee at the meeting. The applicant was one of only two residents who were present. She says that to her it was humiliating that her name was not recorded. At the hearing, Ms Holt said that she had drafted the minutes and conceded that she had mistakenly failed to include the applicant’s name. The applicant, at the hearing, accepted that this was a mistake and the omission was not intended to humiliate her.
Tribunal’s conclusions re the applicant’s request for Orders 1 and 2
The Tribunal accepts that the applicant has felt frustration with, and has at times been annoyed and angered by, the respondent’s representatives’ verbal and written responses to issues she has raised in meetings and otherwise. The applicant has in her application to ACAT raised specific matters relating to actions by the respondent which she says demonstrate the respondent has not complied with requirements of the RV Act and RV Regulations.
The terms ‘harassment’ and ‘intimidation’ used in section 99(2)(e) of the RV Act are not defined. The Macquarie Dictionary defines the terms:
Harass – 1. to trouble by repeated attacks, incursions, etc., as in war or hostilities; harry; raid. 2. To disturb persistently; torment
Intimidate – 1. To make timid, or inspire with fear; overawe, cow. 2. To force into or deter from some action by inducing fear.[37]
[37] Butler, Susan (ed), Macquarie Dictionary (online ed, at 27 January 2016)
The applicant submits that the following factors are sufficient to support the making of the orders 1 and 2 sought by the applicant:
(a)The nature of the relationship between the parties;
(b)the obligations imposed on the respondent by the RV Act, including the requirement to ‘respect the rights of the residents’,[38] must be interpreted with reference to the objects of the RV Act as set out in section 6 of the RV Act; and
(c)the nature of the various incidents that the applicant has identified and the cumulative effect of these incidents on the applicant.
[38] Section 99(1) of the RV Act
Although the respondent denies the applicant’s assertions as to the respondent’s motives and the applicant’s negative characterisation of the events identified, the respondent does not deny that the events or circumstances identified by the applicant occurred. The Tribunal does not find that any of the individual incidents identified by the applicant are ‘harassing’ or ‘intimidating’. However, this is not a requirement for an order pursuant to section 99(3)(b) of the RV Act. The applicant has clearly identified that she seeks an order directing the respondent to comply with this section.
Although the Tribunal is satisfied that, at times, the responses and communication from the respondent’s representatives to the applicant have failed to meet the standard of respect identified by Mr McMahon in his email of 29 April 2014,[39] the Tribunal is not satisfied that neither the individual instances nor their combined effect has amounted to a failure to comply with sections 99(1) or 99(2)(e) of the RV Act in this matter. Whilst the applicant has been frustrated, dissatisfied and at times angry about the respondent’s representative’s actions and responses, she has not been deterred from pressing for answers and responses and, as she is entitled to do, making an application to ACAT about other aspects of the Respondent’s actions and obligations.
[39] Exhibit A11
The Tribunal does not accept the respondent’s submission that a delay, if any, by the applicant in making her application to ACAT is a relevant factor in making this finding. The applicant asserts that it is both the individual incidents and the cumulative effect of these incidents that amount to either harassment or intimidation and or a failure by the respondent to respect her rights. The Tribunal does not accept that the objective of the RV Act, set out in section 6(d) of the RV Act establishes a ‘right’ of the applicant to ‘be involved in the management of’ the retirement village. The Tribunal does however accept that when interpreting provisions that require the respondent to provide information to the applicant or to take action to benefit the applicant, a failure by the respondent to comply with those requirements may result in a failure to achieve the objective set out in section 6(d) of the RV Act and be a failure to comply with section 99(1) of the RV Act to respect the applicant’s rights.
The Tribunal does not accept the respondent’s submission that the appropriate standard to be applied is how a ‘reasonable person’ would respond in the situation. A clear intention of the RV Act, by creating the rights and obligations that it does, is to address the possible imbalance in the relationship between retirement village operators and residents. It is appropriate to take into account the potentially more vulnerable position of retirement village residents when considering applications. In the current matter and based on the particular circumstances, the Tribunal finds that there has been no breach of section 99 of the RV Act.
The Tribunal accepts the respondent’s submission that the applicant’s request that an order be made requiring the respondent to provide an apology would not be available, even if the Tribunal had otherwise been prepared to make an order in relation to section 99 of the RV Act. The Tribunal accepts that it would have been restricted to the orders set out in section 99(3) of the RV Act in relation to this aspect of the applicant’s application. The Tribunal makes no order in relation to the applicant’s request for orders 1 and 2.
Applicant’s request for orders 3, 4 and 5 – re orders 3 & 5 – no order; in relation to order 4 – Tribunal orders 1, 2 and 3
The applicant submits that she has wrongly been required to pay for the installation of a replacement air conditioner in her unit. When the applicant’s residence contract with the respondent commenced on 14 June 2005 [40] there was an air conditioner installed in the lounge room of the premises. The air conditioner broke down on 23 June 2014 and could not be repaired. The applicant paid $2,390[41] for the inspection of the old air conditioner, and the supply and installation of a new air conditioning unit on 23 July 2014.
[40] Exhibit R3
[41] Exhibit A19
The applicant provided evidence that was not disputed that the air conditioner was operating when she moved in in 2005. The applicant submits that it was a fixture in the premises and the respondent is responsible for the cost of replacement, plus interest and bank fees that she incurred in borrowing money to purchase and install the air conditioner.
The applicant seeks orders that:
(a)the respondent be fined 20 penalty points for breaching section 146 of the RV Act because the respondent sold[42] the air conditioner, which is a capital item, to the applicant;
(b)the respondent pay to the applicant the sum of $2,662.00 plus ongoing interest to reimburse her for the costs associated with the purchase, delivery, installation and bank charges and fees for the funds borrowed by her to purchase the replacement air conditioner; and
(c)that any amount the respondent is ordered to pay pursuant to (b) above, is not to be charged to the operating account or capital works fund of the village where the applicant resides.
[42] ‘sell’ is defined in s 146 of the RV Act to include “pass responsibility for the capital item, directly or indirectly to, the resident.”
Section 5 of the RV Act states that other legislation applies to offences under the RV Act. The respondent submitted and the Tribunal accepts that ACAT does not have jurisdiction to make orders in relation to offences or impose penalty points under the RV Act. The Tribunal finds that it has no jurisdiction to do so and makes no order in relation to the applicant’s request for order 3.
The Retirement Villages Act 1999 (NSW) (the ‘NSW RV Act’) and the Retirement Villages Regulations 2000 (NSW) (the NSW RV Regulations) applied to the contract between the applicant and the respondent when it commenced. The contract commenced on 14 June 2005.[43]
[43] Exhibit R3
The Tribunal was not provided with a copy of the contract signed by the applicant. The copy of the contract tendered at the hearing has only the respondent’s representative’s signature on it. The respondent’s representative signed the contract on 14 June 2005.[44] The applicant did not dispute that she signed a copy of the contract. The solicitor’s certification[45] is not completed in the copy of the contract provided to the Tribunal. No evidence was provided that the applicant sought or was provided with legal advice about the contract. The parties did not dispute that the contract was made and commenced on 14 June 2005.
[44] Exhibit R3
[45] Exhibit R3
As was required by the NSW legislation,[46] the applicant and a representative of the respondent inspected the premises where the applicant now resides on 14 June 2005. A condition report was completed and signed on that date and annexed to the contract (the ‘condition report’).[47]
[46] Section 38 of the NSW RV Act and Regulation 11 of the NSW RV Regulations
[47] Exhibit R3
In the contract the term ‘premises’ is defined in the particulars as being the unit number and street address of the unit where the applicant resides. The respondent submits that the only ‘fixtures, fittings, furnishings and non-fixed items’ that were identified in the contract as being provided with the premises were those listed at Schedule Two, namely:
Light fittings
FlyscreensLaundry tub
In the condition report there are a number of fixtures identified which are not referred to in the contract, including in the bathroom:
shower, shower screen, toilet, wash basin, vanity, cabinet, mirror, grab rails
In the condition report under the heading ‘Other Fixtures, fittings, furniture or household items’[48] only the following items are listed:
Heater in bedroom
Heater in bathroom
[48] Exhibit R3
The condition report states, in relation to the following:
Floor coverings: These are the responsibility of the Resident
Window coverings: These are the responsibility of the Resident
Laundry: Note: Any dryer is the responsibility of the Resident
Air Conditioner: Any air conditioning unit is the responsibility of the Resident
Garden of the Resident (sic): This is the responsibility of the Resident
The applicant and the respondent’s representative signed the condition report on 14 June 2005.
The applicant submitted that from 2005 until the air conditioner broke down in June 2014, she paid maintenance costs. The applicant gave evidence that until it broke down on 23 June 2014, she was not aware that she would be responsible for the cost of replacing it. The applicant notes that there was no other form of heating in the lounge area of the premises. Although the heaters in the bedroom and bathroom work, the applicant does not use the bedroom heater. The heater is under the window in the bedroom. The applicant has put long curtains on the bedroom window and these fall to the floor in front of the heater which means it is not safe to use the bedroom heater and she does not do so. The applicant relies on the air conditioner, a reverse cycle unit, in the lounge room to heat the premises. The applicant submits that when the air conditioner broke down this meant, effectively, that she had no heating in the premises.
The applicant submits that:
(a)the only reference to an air conditioner is in the condition report;
(b)the air conditioner is mounted on the lounge room wall and is a fixture;
(c)when the respondent advised the applicant, after the air conditioner broke down in June 2014, that she was responsible for the cost of replacement, this was an attempt by the respondent to pass the responsibility for replacement of the air conditioner, which is a capital item, to a resident in breach of section 146 of the RV Act.
The respondent says that at the time of the contract in 2005, the respondent ‘sold’ the air conditioner to the applicant. The respondent submits that sub-section 146(4) of the RV Act excludes from the restriction in sub-section 146(1) of the RV Act the sale of fixtures in residential premises to residents. Further, or in the alternative, since the ‘sale’ of the air conditioner to the applicant occurred before 14 March 2013 (when the RV Act commenced), section 503V(1) of the RV Act operates so that section 146 of the RV Act does not preclude the ‘sale’ of the air conditioner to the applicant at the time that she entered into the contract on 14 June 2005.
The Tribunal accepts that the condition report was completed prior to the contract between the applicant and the respondent, albeit on the same date. The applicant appears to have accepted that she was responsible for the cost of maintenance of the air conditioner from 14 June 2005 until it broke down in June 2014. The applicant has not sought any order in relation to these maintenance costs.
Pursuant to sub-section 163(3) of the NSW RV Act and sub-section 219(2) of the RV Act, when a contract between a resident and the operator ends, the former resident must leave the premises in as near as possible to the same condition as is set out in the condition report, fair wear and tear excepted. A condition report is prepared for this purpose. The Condition Report is annexed to, but does not form part of the contract. During the period of the contract, a tenant may not add, remove or alter fixtures or fittings without the operator’s written consent.[49] The respondent’s consent is not required to remove fixtures or fittings added by a resident with the respondent’s consent, unless to do so would cause significant damage to the premises.
[49] Section 63 of the RV Act
Here, the reference to an air conditioner in the condition report does not state that there is one, merely that ‘if any’ then it is the ‘responsibility of the tenant’. There is no dispute that there was one in the premises at the time of the contract, but the respondent says that it was sold to the applicant when she signed the contract in 2005.
If this is correct, then given that it was already a fixture, the respondent could not ‘complain’ about its installation, but equally, presumably, could not prevent its removal by the applicant, unless she failed to repair any damage caused. The applicant would not be obliged to maintain or repair the air conditioner if she chose not to. Nor, in the Tribunal’s view, could the respondent have insisted on its removal, by the applicant, when she vacates the premises. It may have been possible for the applicant to have requested, prior to the commencement of the contract and her occupying the premises, that the respondent remove the air conditioner, and for the Respondent to repair any damage caused by its removal, but she did not do that.
Regulation 11(4) of the RV Regulations requires that the resident have at least 14 days to examine, and suggest changes to, the condition report. Regulation 11(7) the NSW RV Regulation, which applied to the contract when the applicant signed it, did not stipulate a period of time, but referred to ‘sufficient time’.
The applicant submits that, as there was no other heating in the lounge area, the respondent cannot sell the only heating to the applicant and shift responsibility for it to her. The Tribunal does not accept that there is any responsibility for the respondent to provide heating. The Tribunal further notes that there are heaters installed in the bathroom and bedroom. The bedroom and bathroom heaters function, although the applicant has chosen to hang curtains in the bedroom that prevent safe use of that heater. The respondent does not deny that it is responsible for the maintenance, repair and, if necessary, replacement of the bedroom and bathroom heaters.
The applicant provided evidence, which the Tribunal accepts, that there is a thermostat attached to the lounge-room wall[50] that had operated a heater previously installed in the lounge room at the premises. The lounge room heater was removed before the applicant inspected the premises and signed the condition report, but the thermostat was not removed. The thermostat now has no function. Again, in the Tribunal’s view, the applicant could have asked for this thermostat to be removed before she signed the contract and commenced occupancy, but she did not.
[50] Exhibit A17
The question for the Tribunal is therefore, who owns the air conditioner? If it belongs to the respondent, then the respondent is responsible for and must pay for the cost of replacement.
It is clear that the contract does not, in Schedule Two, set out an exhaustive list of the fixtures in the premises. Additional items are identified in the condition report. The NSW Act and NSW Regulations define what is meant by the term ‘item of capital for which the operator is responsible’ in section 92 of the NSW Act. This definition excludes items that are ‘owned by a resident’.[51] The operator must, if necessary, replace ‘items of capital’ for which it is ‘responsible’. Regulation 5(a) of the NSW RV Regulations prescribes that ‘fixtures’ in premises are an ‘item of capital’.[52] Here, despite the assertion by the respondent that the air conditioner was ‘sold’ to the applicant at the time of the contract in 2005, the respondent provided no evidence to support this assertion.
[51] NSW RV Act s 92(1)(a)
[52] NSW RV Act s 4(1) definition of ‘item of capital’ paragraph (d)
Based on the evidence available to it, the Tribunal finds that:
(a)at the time of the contract between the applicant and the respondent commenced on 14 June 2005 the air conditioner was a fixture in the premises which were the subject of the contract;
(b)there is no evidence of the sale of the air conditioner to the applicant at that time or subsequently;
(c)the respondent was at all times responsible for the cost of replacement, if necessary, of the air conditioner;
(d)the applicant advised the respondent that the air conditioner had broken down and required replacement;
(e)the air conditioner is the only heating provided in the lounge area of the premises. The air conditioner broke down in June 2014, which is winter in Canberra. The Tribunal finds that this is a ‘breakdown’ of an ‘essential’ heating service in the premises within the meaning of section 136(i) of the RV Act;
(f)the respondent declined to replace the air conditioner after being notified by the applicant that it had broken down. In those circumstances the Tribunal does not need to consider whether the respondent failed to respond within a reasonable time. The applicant was entitled to replace the air conditioner pursuant to section 139(1) of the RV Act;
(g)pursuant to s139(3) of the RV Act the Tribunal can order the respondent to reimburse the applicant the reasonable costs incurred by the applicant; and
(h)the Tribunal may make an order that the respondent pay the applicant interest pursuant to section 139(4) of the RV Act.
The Tribunal accepts that although the air conditioner was replaced in July 2014, it is reasonable for the applicant to have sought reimbursement for the cost when she applied to ACAT in March 2015.
The applicant has provided evidence of costs incurred by her of $2,390[53] which includes the service fee associated with inspecting the original air conditioner to determine that it could not be repaired and, on 9 July 2014, the purchase price and installation cost of the new air conditioner. She paid $2,390 by cheque on 28 July 2014.[54]
[53] Exhibit A19
[54] Exhibit A19
The Tribunal finds that the respondent is liable to ‘bear the cost’ of the replacement of the air conditioner. Pursuant to section 139(3) of the RV Act the Tribunal orders that the respondent is to pay the applicant the sum of $2,390 being the reasonable costs incurred by the applicant in replacing the air conditioner.
The applicant also seeks an order for interest on the amount of $2,390 from 31 July 2014 calculated at a daily interest rate of 15.2% which the applicant says is the rate that she paid for an overdraft which she used to pay the sum of $2,390.
The respondent was aware that the applicant did not have available funds to purchase the air conditioner. Indeed, after the respondent’s representative advised the applicant that the respondent was not responsible for the replacement costs, the respondent agreed to lend the applicant the money to pay for the air conditioner. For various reasons the applicant did not accept this offer and chose to finance the air conditioner through her bank. The Tribunal is not satisfied, based on the available evidence, that it is appropriate to make an order for interest to be paid calculated at the rate of 15.2% as there is insufficient information before the Tribunal to conclude that this is a reasonable or appropriate rate.
The Tribunal is satisfied that it is appropriate to order that the respondent pay interest, at the Magistrates Court pre-judgment interest rate, calculated from 31 July 2014 up to and including the date of this order, on the amount of $2,390 within 14 days of the date of this order.
If the respondent fails to pay the amount ordered, including interest, to the applicant within 14 days of the date of this order, then the respondent is to pay post judgment interest on so much of the amount ordered as remains from time to time outstanding, calculated from the day following the date of this order, until the ordered amount is paid in full.
Applicant’s request for order 6 – no order
The applicant seeks an order that the respondent be directed to comply with its obligation to seek the residents’ consent to the appointment of an auditor to conduct the audit of the FY2015-2016 annual accounts pursuant to clause 168(2)(c) of the RV Act.
The respondent submits that it has met its obligations under sub-section 168(1) of the RV Act by arranging to have the annual accounts audited by a suitably qualified auditor. The applicant did not dispute that the auditor who is to undertake the audit in FY2015-2016 is the ASIC registered auditor – Stuart John Hutcheon[55] – who conducted the audit of the annual accounts of the village in FY2014-2015. The respondent submits there is no requirement for it to have sought the consent of the residents to the appointment of Mr Hutcheon as auditor for the FY2015-2016 annual accounts.
[55] Exhibit R4 – ASIC extract dated 30 October 2015 showing Mr Hutcheon’s registration commenced on 26 March 2007 and is current
Member Sinclair, who is an experienced accountant, advised at the hearing that an auditor is appointed and remains the ‘appointed’ auditor until they resign. The Tribunal accepts Mr Hutcheon is the ‘appointed auditor’ for the purpose of the FY2015-2016 annual account for the village.
The fees for the audit were included in the FY2015-2016 proposed annual budget for the village.[56] These auditor fees were to be paid by the residents. The Tribunal finds that there was no requirement for the respondent to seek the residents’ consent pursuant sub-section 168(2)(c) of the RV Act. Accordingly, the Tribunal makes no order in relation to sub-section 168(2)(c) of the RV Act.
[56] Exhibit A27 at page 181 of the applicant’s documents – being $351
The word ‘appointed’ as it is used in sub-section 168(2)(b) of the RV Act refers to the auditor who will conduct the audit of the annual accounts in the year of the proposed annual budget, even if that auditor conducted the audit of the annual accounts in the previous year. Sub-section 168(2)(b) of the RV Act requires the respondent to include the auditor’s name in the proposed annual budget. Notwithstanding that the respondent did not do this in the FY2015-2016 proposed annual budget, the Tribunal is satisfied that as no new auditor was to be appointed, the respondent’s failure to include the auditor’s name is an oversight insufficient to support making an order. The respondent should, and on behalf of the respondent Mr D’Amato has undertaken to, in future ensure that the auditor’s name is included in the proposed annual budget as required by sub-section 168(2)(b) of the RV Act when the fee for the auditor is to be paid by the residents.
Applicant’s request for order 7 - no order
The applicant seeks an order that the respondent be required to inform the residents their right to consent to not have the annual accounts audited pursuant to section 170 of the RV Act. The respondent submits that there is no requirement to do this.
The parties agreed that the total amount of the recurrent charges collected for the village is less than $50,000. Consequently, sub-section 170(2) of the RV Act provides a process by which, with the residents’ consent, an operator ‘need not’ have the annual accounts audited despite the obligation is set out in section 168 of the RV Act. If consent is given, the operator is not required have the annual accounts audited, but is required to comply with sub-section 170(2)(b) of the RV Act.
Neither party was able to point the Tribunal to any provision in the legislation that requires the respondent to advise the residents of a village of the consent provision in sub-section 170(2) of the RV Act. The obligation imposed on the operator by section 168 of the RV Act, to have the accounts audited, is intended to protect the interests of residents. The Tribunal finds that the operator is not required to advise residents about the alternative process set out in section 170(2) of the RV Act.
The Tribunal finds that there is no ‘right’ for residents to ‘consent’ pursuant to section 170(2) of the RV Act and to compel the operator to undertake the alternative obligations imposed by section 170(3) of the RV Act. The Tribunal finds that there is no basis for the order 7 sought by the applicant. The Tribunal makes no order.
Applicant’s request for order 8 – no order
The applicant seeks an order that the respondent respect her right pursuant to section 160 of the RV Act to not be given a copy of the proposed annual budget. The respondent submits that there is no obligation on the respondent to advise residents in the village, of the opportunity under section 160(1) of the RV Act to consent to not being given a copy of the proposed annual budget.
Neither party identified a provision in the legislation which requires the respondent to alert the applicant to the operation of section 160 of the RV Act. The parties agree that the amount of the recurrent charges to be collected at the village is less than $50,000, therefore the Tribunal accepts that the opportunity exists for residents to consent to not being given a copy of the proposed annual budget. The effect of that consent would be that section 159 and sections 161 to 167 of the RV Act do not apply during the time that the consent continues. However the respondent would still be required, pursuant to section 160(4) of the RV Act, to advise the residents at the annual management meeting of the name of the auditor, if the operator is required to have the accounts audited pursuant to section 168 of the RV Act.
The Tribunal finds that there is no obligation on the respondent to advise the residents about the operation of section 160 of the RV Act. Residents may forgo the protection afforded by section 159 and sections 161 to 167 of the RV Act, however that opportunity is not reflected in any statutory requirement for the respondent to advise residents about the operation of section 160 of the RV Act. The Tribunal finds that there is no basis for it to make the order 8 sought by the applicant. The Tribunal makes no order.
Applicant’s request for order 9 – no order
The applicant seeks an order requiring the respondent to respect her right pursuant to sub-section 6(d) of the RV Act to be involved, if she chooses to do so, in the management of the village where she resides.
The objects of the RV Act are set out in section 6 of the RV Act. These are the objectives that the provisions of the RV Act, by their operation, are intended to achieve. The Tribunal is guided by these objectives when considering and interpreting the operation of specific provisions, including section 181 of the RV Act which sets out the range of orders that ACAT may make in response to an application by a resident or operator. However, the Tribunal does not accept the applicant’s assertion that section 6 provides for additional rights. Rather, to the extent that the RV Act and RV Regulations provide that an operator must provide information and/or take action, then when applying those provisions the Tribunal must be mindful of the objectives set out in section 6 of the RV Act.
It is not appropriate to make the order requested by the applicant. An order would not assist the respondent to meet its obligations or the applicant in being afforded any specific right under the RV Act. The provisions of the RV Act and RV Regulations should operate to achieve the objective set out in section 6(d) of the RV Act. The Tribunal finds that there is no basis for the order 9 sought by the applicant and makes no order.
Applicant’s request for Order 10 – no order
The applicant seeks an order that the respondent commence a review of its administration, communication and personnel interaction with residents of the village so as to integrate best practice management standards as required by section 6(f) of the RV Act.
The respondent submits, and the Tribunal accepts for the reasons set out in relation to the applicant’s request for order 9, that the Tribunal does not have power to make this order 10.
If the Tribunal makes an order in relation to a specific provision of the RV Act it is to be hoped that the respondent will take the opportunity to review its current practices. If an order is made it is because the Tribunal finds that the respondent has not complied with its obligation in relation to a specific provision of the RV Act. It may be necessary for the respondent to adopt a different approach in relation to similar matters in order to ensure that it is able to comply with its obligations under the RV Act in relation to that provision and related provisions.
Applicant’s request for Order 11 – Consent order 1
The applicant seeks an order that the respondent, within 7 days of the date of the order, provide to the applicant copies of the FY2012-2013 and FY2013-2104 safety inspection reports completed for the village pursuant to sub-sections 91(1) and 91(2) of the RV Act.
The respondent has, in compliance with sub-section 91(2)(c) of the RV Act, undertaken an inspection and made a safety inspection report for the village in FY2012-2013, FY2013-2014 and FY2014-2015. As the village does not have a residents committee or notice board in a communal area, in order to comply with sub-section 91(2)(d) of the RV Act, the respondent is required to provide a copy of the annual safety inspection report to the residents of the village.
At the hearing, the respondent advised that the parties agreed to a consent order that, pursuant to sub-section 91(d) of the RV Act, the respondent provide to the applicant within 14 days of the date of the order a copy of the FY2012-2013 and FY 2013-2014 annual safety inspection report for the village.
Applicant’s request for Order 20 – Tribunal order 4
The applicant seeks an order that the respondent be directed to provide to the applicant the capital works fund accounts of the village for quarters 1, 2 and 3 of FY2014-2015 .
The operator of a village must, not later than 28 days[57] after the end of each quarter, give the residents[58] of a village a copy of the quarterly accounts pursuant to sub-section 168(3) of the RV Act, unless they consent to not receive them.[59] The residents of the village did not give consent.
[57] Section 168(8)(b) of the RV Act as there is no time prescribed by Regulation
[58] As the village where the applicant resides does not have a residents committee or common property, in order to comply with sub-section 168(3) of the RV Act, the respondent has to provide a copy of the quarterly accounts to the residents.
[59] Section 171(2) of the RV Act
The applicant agrees that she has been provided with the quarterly accounts for quarter 1, 2 or 3 in FY2014-2015[60] however these did not include information about payments into or from the capital works fund for the village.
[60] Exhibit A22
‘Quarterly accounts’ is defined in the RV Act as:
quarterly accounts, for a quarter for a retirement village, means the accounts of the village’s income and spending for the quarter.
The Tribunal finds that this requires the respondent to include in the quarterly accounts information about payments into and out of the capital works fund for the village. The Tribunal finds that the respondent has not complied with the requirement of sub-section 168(3) of the RV Act in so far as it has failed to include information in the quarterly accounts about payments into and out of the capital works fund of the village in the quarter. The Tribunal accepts that, although this information was not included in the quarterly accounts for quarters 1, 2 and 3 of FY2014-2015 for the village, this information will be included in the audited annual accounts for FY2014-2015.
The Tribunal directs the respondent subsequent to 30 June 2015 to include, in the quarterly accounts, details of payments into and out of the capital works fund of the village which occurred during the quarter.
Applicant’s request for order 21 – no order
The applicant requests orders relating to the obligations she asserts are imposed on the respondent in relation to the operation of section 160 of the RV Act. For the reasons set out above in relation to the applicant’s request for order 8, the Tribunal finds that there is no basis for the order 21 sought by the applicant. The Tribunal makes no order.
Applicant’s request for order 22 – Consent order 2
The applicant sought orders in relation to several matters that will be dealt with below. However, included in the applicant’s request for order 22 is a request that the respondent be directed to comply with certain requirements relating to the purported notice of amendment of recurrent charges dated 25 June 2015[61] which the respondent sent to the applicant. The applicant says that this purported notice does not comply with the requirements of section 150 of the RV Act.
[61] Exhibit A28
At the hearing the respondent conceded that the notice it sent to the applicant dated 25 June 2015[62] to increase the recurrent charges by an amount not exceeding the CPI and which was to commence on 1 July 2015:
(a)did not provide at least 14 days’ notice as is required by sub-section 150(3) of the RV Act; and
(b)included in the amount of the ‘rate’ of charges to be paid by the applicant an amount for another regular payment that the applicant makes to the respondent and which is not part of, or related to, the recurrent charges payable by her.
[62] Exhibit A28
The respondent advised that the purported notice dated 25 June 2015 [63] has been withdrawn. The parties agreed to a consent order that any notice that the respondent gives to the applicant of amendment to the recurrent charges payable by the applicant must comply with the requirements of the RV Act and RV Regulations and must refer to only the recurrent charges amount payable by the applicant.
Applicant’s request for order 23 – no order
[63] Exhibit A28
The applicant seeks orders in relation to the FY2015-2016 proposed annual budget including:
(a)the font size used – the applicant accepts that there is no requirement for a specific font size to be used. Accordingly the Tribunal makes no order in this regard. The Tribunal does however consider that, in the interests of ‘best practice’ the respondent should be mindful of the intended audience for information provided to residents and, when providing printed information, should consider using font and print size in documentation that is more easily read by people who may have a degree of sight impairment or less than optimal visual acuity;
(b)that the terminology used by the respondent in the proposed annual budget document and accompanying notices be consistent with the statements set out in the RV Regulations. The Tribunal has considered the information set out in the FY 2015-2016 proposed annual budget and accompanying notices.[64] The Tribunal finds that these documents substantially comply with the requirements of section 159 RV Act and regulation 37 of the RV Regulations. Where the different wording or terminology used it does not materially alter or affect the meaning of the information provided to the applicant. The respondent has provided all the information required. For that reason the Tribunal makes no order about these matters. However, in future the respondent should use the same terminology and wording as appears in the RV Act and RV Regulations when is required to include statements in and provide information to the applicant and other residents. Ideally, the respondent should also include, in any documentation that it provides to residents, a reference to the applicable provision of the RV Act or RV Regulations so as to assist residents who may wish to confirm compliance by the respondent with its obligations under the RV Act and RV Regulations;
(c)that information the respondent included in the proposed annual budget that does not relate to the village where the applicant resides, should not be included. The Tribunal notes that this relates to some expenditure and other items which are included in the proposed annual budget and may be relevant to other villages that the respondent operates. Provided it is clear that no amount has been included in the proposed annual budget for the village where the applicant resides in relation to these matters, the Tribunal is not prepared to make the order requested. The inclusion of this information may assist residents to be satisfied that these items that are otherwise included in the respondent’s costs are not included in the annual budget for the village.
Tribunal’s conclusion that regulation 37(3)(b) of the RV Regulations should refer to section 151 not section 159 of the RV Act
[64] Exhibit A27
Regulation 37(3)(b) of the RV Regulations states that regulation 37(4) of the RV Regulations applies if:
(b)the recurrent charges have been increased but the Act section 159 [sic] does not apply to the increase.
Regulation 37(4) of the RV Regulations provides the wording for the statement to be included in a notice to accompany the proposed annual budget for a village depending on which of the following situations applies:
(a)there has been no increase in the recurrent charges – regulation 37(4)(a); or
(b)the recurrent charges have been increased in accordance with a fixed formula – regulation 37(4)(b). This refers to an increase in accordance with section 149 of the RV Act; or
(c)the recurrent charges have been increased otherwise than by a fixed formula, but not more than the variation in the CPI – regulation 37(4)(c). This refers to an increase in accordance with section 150 of the RV Act.
Regulation 37(2) of the RV Regulations deals with the statements to be included when there has been an increase in the recurrent charges otherwise than by a fixed formula, and the increase is more than the variation in the CPI – section 151 of the RV Act.
In the Tribunal’s view, the reference to section 159 of the RV Act in regulation 37(3)(b) of the RV Regulations is an error and the Regulation should state:
(b)the recurrent charges have been increased but the Act section 151 does not apply to the increase.
As currently drafted, in the Tribunal’s view, regulation 37(3)(b) of the RV Regulations does not make sense when read with regulations 37(2) and 37(4) of the RV Regulations. This appears to be a drafting error, perhaps made because regulation 37 is dealing with the notices accompanying the proposed annual budget.[65] Section 159 of the RV Act deals with proposed annual budgets.
Applicant’s request for Order 24 – no order
[65] Section 159(5)(d) of the RV Act
The applicant seeks an order that the respondent acknowledge its responsibility to provide the applicant with a notice accompanying the FY2015-2016 proposed annual budget that complies with regulation 37 of the RV Regulations.
For the reasons set out in relation to the applicant’s request for order 23, the Tribunal finds that the notices provided by the respondent with the FY2015-2016 proposed annual budget substantially comply with regulation 37 of the RV Regulations. The Tribunal makes no order.
Applicant’s request for order 25 – consent order 3
The applicant seeks an order that the respondent provide details of the method of calculation of the recurrent charges in the FY2015-2016 proposed annual budget[66] as required by regulation 35(1)(b) of the RV Regulations.
[66] Exhibit A27
At the hearing the respondent conceded that it had not provided this information in the FY2015-2016 proposed annual budget.
The parties agreed to a consent order that in relation to the amount of recurrent charges appearing in the FY2015-2016 proposed annual budget the respondent is to provide to the applicant and the other residents of the village within 14 days of the date of the order details of the method of calculation of the recurrent charges.
Applicant’s request for orders 26 – dealt with by consent order 2 (re applicant’s request for order 22)
The applicant sought an order that the respondent acknowledge its responsibility to comply with the requirements of section 150(4)(c) of the RV Act and regulation 31 of the RV Regulations in relation to the format of the purported notice to amend recurrent charges that was given to the applicant.[67] As the purported notice has been withdrawn by the respondent and a consent order has been made in relation to the applicant’s request for order 22 (in relation to any further notice that the respondent gives to the applicant), the Tribunal makes no further order in relation to the applicant’s request for order 26.
Applicant’s request for orders 27, 28 and 29 – no orders required – no order
[67] Exhibit 28
At the hearing the Tribunal indicated that it was satisfied, and the applicant accepted, that in the FY2015-2016 proposed annual budget the respondent had provided a ‘brief’ explanation for the change in spending from the previous financial year[68] as is required by section 159(4)(b) of the RV Act. In the circumstances the applicant did not pursue her request for order 27.
[68] Exhibit A27
The applicant requested an order that the respondent acknowledge its responsibility to give the applicant the right, with other residents of the village, to determine how any surplus in the annual accounts is treated. At the hearing the applicant accepted that, as the residents must, pursuant to s173 of the RV Act. consent to any proposal made by the respondent to deal with a surplus of the village there is no basis for the order 28 requested by the applicant.
The applicant’s request for order 29 sought an order that the respondent acknowledge its responsibility under regulation 35(1) (b) of the RV Regulations by showing the effect of the expected surplus or deficit for the current year on the village’s finances. During the hearing the applicant agreed the respondent had met this obligation, therefore no order was necessary.
As the applicant did not pursue her request for orders 27, 28 or 29, the Tribunal makes no order.
Applicant’s request for order 30 - withdrawn day three of hearing – no order
On day three of the hearing the applicant advised that, as she accepted that the residents of a village can deal with any surplus by resolution and consent,[69] she withdrew her application for an order in the terms set out in the applicant’s request for order 30.
Applicant’s request for order 31 – no order
[69] Section 173 of the RV Act
The applicant seeks an order in the terms of the applicant’s request for order 31 that the expenditure of $351 in the FY2015-2016 proposed annual budget for auditor’s fees[70] be reimbursed by the respondent because the:
(a) auditor’s name is not included in the FY2015-2016 proposed annual budget[71]; and
(b) residents of the village did not consent to the appointment of an auditor to undertake an audit of the village’s annual accounts at any time since the RV Act and RV Regulations came into effect in 2013.[72]
[70] Exhibit A27
[71] As required by section 168(2)(b) of the RV Act
[72] As required by section 168(2)(c) of the RV Act
The first audited accounts that were prepared subsequent to the commencement of the RV Act and RV Regulations was for the FY2013-2014.
Mr D’Amato gave evidence at the hearing, which the Tribunal accepts, that the auditor who was to undertake the audit of the FY2015-2016 annual accounts is the same auditor who had audited the accounts of the village in all relevant previous years including FY2013-2014 and FY2014-2015.
As noted above, the auditor – Stuart Hutcheon – is an ASIC registered auditor.[73] Once appointed as the auditor, this person then remains ‘appointed’ until further action. His appointment as auditor predated the FY2013-2014 budget.
[73] Exhibit R4
The Tribunal is persuaded that from an accounting perspective no auditor is ‘to be appointed’ to undertake the audit of the FY2015-2016 annual accounts, and therefore considers that the respondent has not failed to comply with section 168(2)(b) or section 168(2)(c) of the RV Act. The Tribunal therefore makes no order in srelation to the applicant’s request for order 31 sought.
However, if the Tribunal is wrong in its interpretation of section 168(2)(b) of the RV Act and if that provision is intended to operate so that, even if an auditor who is to undertake the audit is the auditor who undertook the audit in the previous year, and the auditor is regarded as being ‘appointed’[74] when that auditor is engaged to undertake the audit in the year of the proposed annual budget – noting the use of the term ‘reappointed’ in the Explanatory Statement (extracted at footnote 76) - then the Tribunal considers that the failure by the respondent to include the auditor’s name, in the circumstances of this matter, would only support an order directing the respondent to include the auditor’s name in each subsequent proposed annual budget where the residents are to pay the auditor’s fees. As noted above, the Tribunal has concluded that, in the particular circumstances of this matter and given the respondent’s undertaking for the future, the Tribunal makes no order about this.
[74] The following comment is included in the Explanatory Statement to the Retirement villages Bill 2012 and appears to suggest that ‘reappointment’ may have a different meaning from ‘appointment’ of an auditor as is understood by accountants –
In relation to the auditor’s fee, the Tribunals finds that the respondent’s failure to include the auditor’s name does not support an order, in the circumstances of this application, that the respondent reimburse the village for the auditor’s fees included as an expenditure in the FY2015-2016 proposed annual budget.
The Tribunal does however consider that, as noted above, the respondent should in future include in the proposed annual budget the name of the appointed auditor when the auditor’s fees are included as an item of expenditure payable by the residents pursuant section 168(2) of the RV Act. Mr D’Amato undertook on behalf of the respondent to do this in future years. Obviously, if a new auditor is to be appointed at any time, then section 168(2)(b) and section 168(2)(c) of the RV Act would operate.
Applicant’s request for order 32 – Tribunal orders 5 and 6
The applicant seeks orders that:
(a)the expenditure item for ‘Administration – Corporate Services’ of $3,062 be removed from the FY2015-2016 proposed annual budget;[75] and
(b)the statements about the villages ‘share’ of ‘Corporate Recharge’ expenditure[76] be removed from the FY2015-2016 budget papers.
[75] Exhibit A27
[76] Exhibit A27
Matters to be dealt with in proposed annual budget—Act, s 159 (4) (a)
(1)The following matters must be dealt with in the proposed annual budget for a financial year for a retirement village:
(a)the amount of recurrent charges payable by residents of the village during the year (including any expected increases in those charges in line with a fixed formula);
(b)the method of calculating the amount of recurrent charges;
(c)the total expected income from recurrent charges for the village for the year;
(d)the effect of the expected surplus or deficit for the current year on the village’s finances;
(e)all proposed categories of expenditure (without grouping together 2 or more unlike categories);
(f)the proposed expenditure on each proposed category, the proposed expenditure on each category as mentioned in the approved annual budget for the current year, and the likely actual expenditure on each category for the current year;
(g)if any expenditure (proposed or actual) is an apportionment of a total expenditure relating to the village and 1 or more other villages or businesses—the method of calculating the apportionment;
(h)if any residents of the village are paying significantly higher recurrent charges than other residents of the village—the method of calculating the apportionment between the categories of residents;
(i)the total proposed expenditure of the village for the year;
(j)the expected surplus or deficit for the year.
Example—par (h)
a resident may pay significantly higher recurrent charges than other residents if the resident is receiving optional services
NoteAn example is part of the regulation, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(2)If the annual budget includes costs associated with the operator’s head office or management or administration fees, those costs must show the goods and services they relate to and the approximate cost of the goods and services.
Matters not to be financed by way of recurrent charges—Act, s 159 (4) (b)
(1)The following matters must not be financed by way of recurrent charges:
(a)fees for membership of industrial or professional associations;
(b)overseas travel by the operator of the retirement village or the operator’s agent or employees;
(c)any costs associated with marketing vacant units within a retirement village, including costs that may have been included in wages or salaries;
(d)payroll tax, unless—
(i)the wages paid by the operator in relation to operating the retirement village are more than the threshold amount; or
(ii)the residents of the retirement village—
(A)before 4 March 2013, consented to the financing of payroll tax by way of recurrent charges; and
(B)have continued to consent to the financing of payroll tax by way of recurrent charges;
(e)costs associated with the operator’s head office or management or administration fees, unless the costs or fees are associated with providing services to residents of the retirement village.
(2)In this section:
threshold amount—see the Payroll Tax Act 2011, schedule 1, section 1.1
Limit on contingencies in annual budget—Act, s 164
The maximum amount that may be allocated is—
(a)for an annual budget of $200 000 or less—$1 000; and
(b)for an annual budget that exceeds $200 000—0.5% of the total amount of the annual budget.
Retirement Villages Act 1999 NSW
Interpretation
(1) In this Division, an item of capital for which an operator of a retirement village is responsible means any item of capital within the retirement village other than an item of capital:
(a) that is owned by a resident of the retirement village, or
(b) that is association property under a community land scheme or common property under a strata scheme, or
(c) that is of a class prescribed by the regulations for the purposes of this section.
(2) For the purposes of this Division, maintenance or replacement of an item of capital is urgent if it is for the purpose of rectifying any of the following:
(a) a burst water service,
(b) a blocked or broken lavatory service,
(c) a serious roof leak,
(d) a gas leak,
(e) a dangerous electrical fault,
(f) flooding or serious flood damage,
(g) serious storm or fire damage,
(h) a failure or breakdown of the gas, electricity or water supply to residential premises within the retirement village,
(i) a failure or breakdown of any essential service on the residential premises for hot water, cooking, heating or laundering,
(j) any fault or damage that causes the retirement village to be unsafe or insecure,
(k) any other matter prescribed by the regulations.
Condition of premises on termination
163 Condition of premises on termination
This section does not apply to or in respect of a former occupant who is, or was, a registered interest holder in respect of his or her residential premises.
A former occupant of a retirement village must, allowing for any renovations or alterations to fixtures or fittings made with the consent of the operator under section 41A, leave his or her residential premises as nearly as possible in the same condition (fair wear and tear excepted) as the premises were in at the beginning of the residence contract.
In particular, the premises must be left as nearly as possible in the same condition (fair wear and tear excepted) as set out in the condition report.
Subsection (3) does not apply in respect of premises the subject of a residence contract entered into before the commencement of section 38 unless a condition report relating to the premises was given to the resident in connection with the contract.
The operator of the village may require a former occupant to bear the cost of any repairs to the former occupant’s residential premises that are necessary because the former occupant did not leave the premises in the condition required by this section.
However, a former occupant:
(a) who disagrees with a claim by the operator of the retirement village that such repairs are necessary because the premises were not left in the condition required by this section, or
(b) who is of the opinion that the cost of the repairs, as claimed by the operator, is excessive,
may apply to the Tribunal for an order in relation to the claim.
(7) In any proceedings before the Tribunal under this section:
(a) the operator bears the onus of substantiating his or her claim, and
(b) the Tribunal may:
(i) if it considers that the operator has not substantiated his or her claim-order the operator to withdraw the claim, or
(ii) if it considers that the operator has substantiated his or her claim, wholly or in part-order the former occupant to pay such amount to the operator as it considers necessary to defray the cost of the repairs.
This legislation has been repealed.
RETIREMENT VILLAGES REGULATION 2000 - REG 5
Item of capital
5 Item of capital
The following items in a retirement village, including those in residential premises in the village, are prescribed for the purposes of the definition of "item of capital" in section 4 (1) of the Act:
(a) fixtures (for example, bench tops, built-in cupboards and wardrobes, floor coverings, hot water systems and stoves),
(b) fittings (for example, light fittings, taps and sanitary fittings),
(c) furnishings (for example, curtains and blinds),
(d) non-fixed items (for example, whitegoods, portable air conditioners, fans, tables and chairs).
Schedule 2
List of Exhibits
| No of Exhibit | Description |
| AI | Medical Certificate dated 27/04/2015 Dr J Lowe – Ainslie Family Practice |
| A2 | Memo dated 3 December 2013 from respondent to residents |
| A3 | Residents’ response to proposed meeting (Ex A2) |
| A4 | Southern Cross Care, Ms Holt to residents letter dated 11 March 2014 |
| A5 | Statement by applicant dated 19 July 2015 filed in support of ACAT application |
| A6 | Email Mr D’Amato to applicant dated 24 March 2014 and applicant’s email to Ms Holt |
| A7 | Applicant’s notes of annual management meeting dated 10 November 2014 |
| A8 | Ms Graudenz’s notes of annual management meeting dated 10 November 2014 |
| A9 | Statement by applicant dated 20 July 2015 filed in support of ACAT application |
| A10 | Letter from Ms Graudenz to Mr McMahon dated 10 April 2014 |
| A11 | Mr McMahon’s email to Ms Graudenz re Exhibit A10 |
| A12 | Ms Graudenz to Mr McMahon letter date 16 May 2014 re exhibit A11 |
| A13 | Respondent’s minutes of annual management meeting dated 10 November 2014 |
| A14 | Email from applicant to Ms Graudenz’s dated 17 December 2013 |
| A15 | Letter from Ms Graudenz to Mr McMahon(CEO) dated 29 June 2016 |
| A16 | Email from Applicant to Ms Graudenz dated 14 September 2012 |
| A17 | Email from Applicant to Ms Graudenz dated 15 October 2014 (including 2 photos dated 15 October 2014) |
| A18 | Dr Lowe (Ainslie Family Practice) letter dated 7 July 2014 |
| A19 | Tax Invoice dated 23/07/2014 for service, supply and fit aircon and interest calculations |
| A20 | Proposed Annual budget for financial year 2013-2014 |
| A21 | Notice of annual management meeting – enclosing auditors report for financial year 2013-2014 |
| A22 | Quarterly Account for quarters ended 30 September 2014, 31 December 2014 and 31 March 2015 |
| A23 | Letter from Ms Graudenz and Applicant to Mr McMahon dated 12 June 2015 |
| A24 | Copies of invoices provided by respondent in response to exhibit A23 |
| A25 | Table 2, page 67/111 applicant’ s submissions volume 2 – being table reflecting payment re Ex A24 |
| A26 | Photograph of work done (concreting) at Unit 4 re Exhibit 24 Invoice # 6 of $1636.36 |
| A27 | Covering letter from respondent to applicant dated 28 April 2015 end proposed annual budget financial year 2015-2016 and notes |
| A28 | Notice dated 25 June 2015 from respondent to applicant re: increase in recurrent charges CPI |
| A29 | Font size (+bold) comparison re regulation 31(b) |
| R1 | Minutes of Annual Management Meeting dated 10 November 2014 |
| R2 | Minutes of meeting held on 16 December 2013 (re Notice Ex A2) |
| R3 | Retirement village residence of service contract made 14/06/2005 between respondent and the applicant |
| R4 | Extract from ASIC showing registration details of auditor- Stuart John Hutcheon |
| R5 | Mr Damato’s statement dated 5 September 2015 (filed 17 September 2015 |
| R6 | Mr Damato’s statement dated 27 October 2015 (filed 28 October 2015) |
Schedule 3
Orders Summary Listing
Intimidation and Harassment
Order 1
Thatthe operator, within 7 days of receipt of the order:
acknowledge its responsibility to respect certain rights of Ms Dickins under s.99 (1), (2) (a) and (e) of the Retirement Villages Act 2012 and cease all forms of intimidation, harassment and humiliation of Ms Dickins.
Order 2
That the Chair of the Board of Southern Cross Care (NSW
& ACT), within 7 days of receipt of the order:
apologisein writing for the intimidation, harassment and humiliation of Ms Dickins, a resident of George O'Neill Court Braddon, ACT, by Mr G D'Amato, General Manager; Housing; and Ms N Holt, Area Manager; and implied demeaning of Ms Dickins by Mr P McMahon, Chief Executive Officer.
Reimbursement of Costs: Airconditioner
Order 3
That the operator be fined 20 penalty units for breach of s.146 (1) (a) of the Act.
Order 4
That the operator, within 7 days of receipt of the order: reimburse into a bank account nominated by Ms Dickins,$2,662.00 incl GST being all costs associated with the purchase of a reverse cycle air conditioning unit, delivery and installation, bank overdraft interest charges, and bank fees.
Order 5
That the reimbursement of $2,662.00 not be charged to the village Operating account or village Capital Works Fund.
CertainRights
Order 6
That the operator, within 14 days of receipt of the order:
acknowledge its responsibility to respect the rights of Ms Dickins, under s. 168 (2) (c) of the Retirement Villages Act 2012, by seeking the consent of residents to the appointment of the auditor;
Order 7
That the operator, within 14 days of receipt of the order:
acknowledge its responsibility to respect the rights of Ms Dickins, under s. 170 of the Retirement Villages Act 2012, to give consent not to have the accounts audited;
Order 8
That the operator, within 14 days of receipt of the order:
acknowledge its responsibility to respect the rights of Ms Dickins, under s. 160 (1) of the Retirement Villages Act 2012, to consent to not being given a proposed annual budget for a financial year for the village.
Order 9
That the operator, within 14 days of receipt of the order:
acknowledge its responsibility to respect the rights of Ms Dickins, under s. 6 (d) of the Retirement Villages Act 2012 to participate, if she chooses to do so, in the management of the village.
Order 10
That the operator, within 30 days of receipt of the order:
commence a review of the corporations administration, communication and personnel interaction with retirement village residents procedures to integrate best practice management standards (Act, s. 6 (f)).
Security and Safety
Order 11
That the operator, within 7 days of receipt of the order:
acknowledge its responsibility under section 91 (1) and 91 (2) of the Retirement Villages Act 2012 by forwarding to Ms Dickins copies of village safety inspection reports for the financial years ending 30 June 2013 - 2015.
Order 12
That the operator, within 30 days of receipt of the order:
acknowledge its responsibilities under section 91 (1) by having Emergency Assembly Point signage installed.
Order 13
That the operator, within 30 days of receipt of the order:
acknowledge its responsibilities under section 91 (1) by having outdoor sensor security motion lighting installed to light main access paths.
Order 14
That the operator, within 30 days of receipt of the order:
acknowledge its responsibilities under section 91 (1) by placing directional signage to assist emergency services home care services and visitors to locate village units.
Order 15
That the operator, within 30 days of receipt of the order:
acknowledge its responsibilities under section 91 (1) by providing each unit with a number that is clearly visible to assist emergency services, home care services and visitors to locate village units.
Order 16
That the operator, within 30 days of receipt of the order:
acknowledge its responsibilities under section 91 (1) by the placement of the village street number in a position that is clearly visible and identifiable from the roadway.
Order 17
That the operator, within 30 days of receipt of the order:
provide Ms Dickins with an updated residents emergency procedure instructions in serif font (size14 or 16 point) and laminated.
Order 18
That the operator, within 30 days of receipt of the order:
place appropriate sized signage, clearly visible from the street, at the front of 5 Chapman Street indicating that the area is 'Resident Parking Only'.
Order 19
That the total cost of the installation of all external lighting and signage not be charged to the village operating account or village Capital Works Fund.
Quarterly Accounts
Order 20
That the operator, within 7 days of receipt of the order:
acknowledge its responsibility under section 168 (3) (a) and (b) of the Retirement Villages Act 2012 by forwarding to Ms Dickins copies of first, second and third and fourth quarter Capital Works Fund accounts for the financial year ending 30 June 2015.
Budget 2015 - 2016
Order 21
That the operator, within 14 days of receipt of an order:
acknowledge its obligation under Act, s. 160, by informing Ms Dickins and other residents that:
(a)the village meets the requirements of Act, s. 160;
(b)residents may consent to not being given a proposed annual budget for a financial year;
(c)if residents consent to not being given a proposed annual budget under Act, s. 159, that section an section 161 to section 167 do not apply in relation to the retirement village while the consent is in force; and
(d)certain rights relating to the proposed annual budget do not apply.
Order 22
That the operator, within 28 days of receipt of an order:
acknowledge its responsibility under Act, s.159 and Regulation 35 and Regulation 36 by issuing Ms Dickins with a revised proposed annual budget, Notice accompanying the proposed annual budget, Notice of an amendment of recurrent charges, the Method of calculating the amount of recurrent charges and a brief Statement explaining the reasons for any changes in spending from the previous financial year.
Order 23
That the revised proposed annual budget and associated papers be printed in at least Arial font not less than 12 point; that the font type and size for printing regulated Notices be complied with; terminology be consistent with the Act and regulation; Notice statements be consistent with regulation statements; and information that is unrelated to the operation of the village be removed from the proposed annual budget papers.
Order 24
That the operator within 28 days of receipt of an order:
acknowledge its responsibility under Regulation 37 by issuing Ms Dickins with a Notice accompanying proposed annual budget.
Order 25
That the operator within 28 days of receipt of an order:
acknowledge its responsibility under Regulation 35 (1) (b) by providing Ms Dickins with the method of calculating
the amount of recurrent charges.
Order 26
That the operator within 28 days of receipt of an order:
acknowledge its responsibility under Regulation 31 by issuing Ms Dickins with a Notice of amendment of recurrent charges given under the Act section 150 (4) (c) in the prescribed format described by regulation.
Order 27
That the operator within 28 days of receiving an order:
acknowledge its responsibility under Act, s. 159 (5) (b) by providing Ms Dickins with Explanatory Notes explaining the reasons for any changes in spending from the previous financial year.
Order 28
That the operator within 28 days of receiving an order:
acknowledge its responsibility under Act, s. 173 and 174 to give Ms Dickins the right to determine the treatment of any surplus in the annual accounts.
Order 29
That the operator within 28 days of receipt of an order:
acknowledge its responsibility under Regulation 35 (1) (b) by showing only the effect of the expected surplus or deficit for the current year on the village's finances.
Order 30
That the operator within 28 days of receipt of an order:
recalculate Ms Dickins Recurrent Charges shown in "Additional Item 1 - New Recurrent Fee Schedule - Table: New Fortnightly Fee" as the combined village revenue from the New Recurrent Fee Schedule is
$949.00 per unit over budgeted Income: "Residents Fees".
Order 31
That Expenditure: Administration - Audit Fees item $351 be removed from the 2015-2016 annual budget as the operator has not acknowledged its responsibilities under s. 168 (2) (b) and s. 168 (2) (c).
Order 32
That Expenditure: Corporate Service - also shown as 'Corporate Recharge' item $3,062:
(a) be removed from the proposed annual budget and be recalculated removing all head office or management or administration fees, not associated with providing services to Ms Dickins in compliance with Regulation 35 (2); and
(b) that statements relating to the "Village's share of the costs incurred by the centralized infrastructure which is provided by Head Office" be removed from the budget papers.
Order 33
That Expenditure: Administration - Motor Vehicle item $288 be removed from the 2015-2016 annual budget as the operator has not acknowledged its responsibility under Regulation 35 (1) (g).
Order 34
That Expenditure: Fixed Expenses - Insurance item $729 be removed from the 2015-2016 proposed annual budget.
Order 35
That Expenditure: Repairs & Maintenance - Building item
$5,000 be removed from the 2015-2016 annual budget and that the operator acknowledge its responsibility under Act,
s. 142 (1) (b) and (2) (a) - (d) and Regulation 35 (e).
Order 36
That Expenditure: Utilities - Domestic Expenses items
'Food & Catering'; 'Cleaning & Laundry'; 'Vital Call' items be removed from the 2015-2016 annual budget as they are unrelated to the village operation.
Cost Recovery
Order 37
That the operator, within 14 days of receipt of an order:
acknowledge its obligation to eligible residents of George O'Neil Court and Haseler Court by refunding various capital replacement costs totalling $6,351 being items incorrectly charged to the general operating account of Southern Cross Village Braddon for the financial year ending 30 June 2014.
Order 38
Thatthe operator, within 14 days of receipt of an order;
acknowledge its obligation to residents of George O'Neill Court Braddon by refunding the sum of $5, 192, being the calculated apportionment of $9,345 incorrectly charged to the Southern Cross Village Braddon Capital Works Fund for the financial year ending 30 June 2014.
Order 39
That the operator, within 14 days of receipt of an order;
acknowledge its obligation to residents of Haseler Court Braddon by refunding the sum of $4, 153 being the calculated apportionment of $9,345 incorrectly charged to the Southern Cross Village Braddon Capital Works Fund for the financial year ending 30 June 2014.
Annual Management Meeting 2014 Resident's Annual Report - 30 June 2014
George O'Neill Court Braddon Capital Works Fund Independent Audit
Order 40
That the operator, within 28 days of receipt of the order:
acknowledge its responsibilities under section 143 (2) and (4) Retirement Villages Act 2012 by depositing the balance of the village Capital Works Fund as at that date, in the village named account with an authorized deposit taking institution.
Order 41
That the operator, within 28 days of receipt of the order:
appoint an independent auditor, (other than StewartBrown Chartered Accountants), to undertake and report on, a financial review of the George O'Neill Court
Capital Works Fund for the financial year ending 30th June 2014.
Order 42
That the operator, within 28 days of receipt of the order:
appoint an independent auditor, (other than StewartBrown Chartered Accountants), to undertake and report on, a financial review of the George O'Neill Court general operating account for the financial year ending 30th June 2014.
Order 43
That the operator, within 14 days of receipt of the audit review reports, forward copies to Ms Dickins.
Order 44
That costs of the independent audit not be charged to Ms Dickins, or the village operating account or the village Capital Works Fund.
Maintenance
Order 45
That the operator, within 28 days of receipt of the order:
acknowledge its responsibilities under section 137 (3) of the Retirement Villages Act 2012 by replacing in the unit of Ms Dickins the following capital items:
(c) laundry tub base unit;
(d) screen (security) door;
Order 46
That the operator, within 28 days of receipt of the order:
remove all existing guttering in which "overflow" holes have been inserted and replaced with new guttering, without "overflow" holes, correctly aligned for water flow to downpipes.
Order 47
That the cost of replacement of existing guttering with "overflow" holes not be charged to the village capital works fund or village general operating account.
The auditor
The Bill provides that if the audit fees are to be paid by the residents, the consent of residents is required to the appointment of an auditor in the same way residents must consent to the expenditure of the auditing fees and the fees must be itemised in the budget. This applies even where one auditor audits the accounts of a number of villages for the same operator. Residents’ consent is not needed if the same auditor as for the previous financial year is reappointed or if the operator chooses to pay the cost of auditing out of its own funds
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