Dobson Developments v Howes

[2000] NSWSC 132

CITATION:	Dobson Developments v Howes & Ors [2000] NSWSC 132
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 11728/1999
HEARING DATE(S):	22-23 February 2000
JUDGMENT DATE:	9 March 2000
PARTIES :	Dobson Developments Pty Limited (Plaintiff/Cross Defendant) v Albert Wilson Howes (First Defendant/First Cross Claimant) & 15 ORS
JUDGMENT OF:	Master Malpass

COUNSEL :	Mr G Downes QC/Mr M Green (Plaintiff/Cross Defendant) Ms J Needham (Defendants/Cross Claimants)
SOLICITORS:	Gregory J Halpin (Plaintiff/Cross Defendant) Legal Aid Commission of New South Wales (Defendants/Cross Claimants)
CATCHWORDS:	Statutory construction - meaning of "retirement village" and - "administering authority" - jurisdiction of the Court and of the Tribunal.
LEGISLATION CITED:	Contracts Review Act 1980. Fair Trading Act 1987, s 75. Retirement Villages Act 1989, s 3, s 5, s 5A, s 14 to s 30 (incl). Retirement Villages Act 1999. Fair Trading Act of 1987/Regulation. Residential Tribunal Regulations, Regulation 30. Retirement Village Industry Code of Practice Regulation 1995, Sch 1, cl 3 Pt 1, 1, 4 and 5.
CASES CITED:	Howes v Christian Enterprises Limited (Cowdroy AJ, unreported 26 November 1996). Murphy v Overton Investments Pty Ltd (Court of Appeal, unreported, 3 September 1998).
DECISION:	See paragraphs 58 - 60.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER MALPASS

THURSDAY 9 MARCH 2000

11728/1999 DOBSON DEVELOPMENTS PTY LIMITED v ALBERT WILSON HOWES & ORS

JUDGMENT


1   The plaintiff is the proprietor of fourteen of the twenty four villa style single storey self-contained units situated at 314 and 322 Willarong Road, Caringbah (the complex is known as “Elim”). The fourteen units were purchased on 1 June 1999 from Christian Enterprises Limited and STWS Pty Limited. The defendants/cross-claimants are residents in these units and at all material times have been over the age of 55 years and are “retired persons”. The remaining ten units are individually owned by persons unrelated to the plaintiff (some may not be “retired persons”).

2   The fourteen units were purchased subject to the existing licences granted to the defendants. A copy of each licence agreement is in evidence. Each contains a second schedule which is described in the agreement as “The House Rules” (the provisions thereof are not identical).

3 The twenty four units were built in two stages between 1970 and approximately 1978. The second stage has been referred to as the retirement village extension. Evidence as to funding and construction may be found in an affidavit sworn by Jane Lye. The premises on which the units stand is known as “Elim Retirement Village” (the Village). The two developments became one village. There are six buildings standing on the parcels of land known as Nos 314 and 322. The fourteen units are scattered amongst the blocks. At the present time, two are in Block A. One of them is one of the three units in Block B. One of them is one of the two in Block C. Five of them are five of the six units in Block D. Two of them are two of the six units in Block E. Three of them are three of the five units in Block F. In addition to these buildings, there appears to be a building described as common property.

4   Between 1972 and 1991, the licence agreements were entered into with the then owner of the Village (Corella Christian Homes Trust) either directly or through one of two companies holding property for the trust (Christian Enterprises Limited or Corella Christian Homes Limited).

5   In the early 1990’s, the Village was converted to Strata Title (Strata Plan 39204). There are twenty four lots and common property (including all of the land within the Village). The common property is vested in the body corporate. There is a strata manager. Strata records show the original proprietor as having been Corella Christian Homes Ltd and the managing agent as Peter Clisdell Pty Ltd.

6   The licence agreements make provision for the payment of weekly licence fees (in such sum as may be determined from time to time by the Board of Management of the licensor). They make provision for termination (including in the event of default in the payment of licence fees).

7   In 1996, a then owner (Christian Enterprises Limited who had been an original developer) through its managing agents (Steadfast Homes Limited) purported to increase the amount payable by way of licence fee (to $70 per week). At some time prior thereto, a budget had been submitted to the residents. The residents disputed the purported increase and sought relief in this Court. The matter came before Cowdroy AJ in the Equity Division. Various issues were litigated with the parties taking positions somewhat different to that taken in these proceedings (the first defendant had held itself out as being “the administering authority” in Tribunal hearings). The Acting Judge delivered judgment on 26 November. There was an appeal against his decision. The appeal did not proceed to hearing. Before that could come to pass, related matters were dealt with by the Court of Appeal in Murphy v Overton Investments Pty Ltd (Court of Appeal, unreported, 3 September 1998). Following that decision, the appeal was disposed of by way of consent orders.

8   Following the purchase of the fourteen units, the plaintiff posted attornment notices to the defendants. It made a determination as to the amount of the licence fee (in the sum of $70 per week). It demanded payment of licence fees at this rate. Payment made at the old rates was tendered and rejected by the plaintiff. The plaintiff has purported to terminate the licences and has required the giving up of vacant possession. The dispute between the parties has led to the bringing of these proceedings. The plaintiff claims possession and/or unpaid licence fees. The defendants have filed Defences and Cross-Claims.

9   It is the case for the plaintiff that it is a property developer and that it has not involved itself in administering the Village. It is said that the fourteen units are not contiguous and cannot themselves be regarded as a retirement village.

10   By consent, orders were made that certain questions be determined separately and before any other issue in the proceedings. The terms of the consent are as follows:-
“By consent, the parties request the Court that the following questions be determined separately:
For the purpose of this Separate Question, IT IS AGREED THAT :
1. the whole of Elim Village has been and remains a Retirement Village within the meaning of section 3(1) of the Retirement Villages Act 1989 (NSW) (‘the Act’).
2. each of the Defendants is a ‘resident’ (within the meaning of section 3(1) of the Act) of Elim Village.
3. each of the Defendants obtained the right to occupy their respective units now owned by the Plaintiff (‘Dobson’) pursuant to a residence contract within the meaning of section 3(1) of the Act.
4. Dobson does not own all of the strata units in Elim Village.
5. the units in Elim village which are owned by Dobson (‘the Premises’) are a non-contiguous sub-set of the Elim Village.

The questions which arise are:
1. Whether the Premises are a retirement village within the meaning of section 3(1) of the Act.
2. If the answer to question 1 is ‘yes’, whether Dobson is the ‘administering authority’ of the Premises for the purpose of section 23 of the Act.
3. If the answer to question 1 is ‘no’, whether Dobson is an ‘administering authority’ of Elim Village for the purpose of section 23 of the Act.
4. If the answer to questions 2 and/or 3 is ‘yes’, whether Dobson is thereby precluded from commencing proceedings in this Court:
(a) in relation to:
(i) the Defendants’ failure to pay arrears of
rent;
(ii) the recovery of possession of the
Premises; and/or
(iii) the relief sought by Dobson in its
statement of claim; and/or
(b) by reason of sections 15 or 23 of the Act.
5. If the answer to question 1 is ‘no’, does section 15 of the Act apply such that the residence contracts between the Defendants and Dobson have not each been validly terminated.
6. If the answer to questions 2 and 3 is ‘no’, does the Residential Tribunal nevertheless have jurisdiction to determine the issues between the parties to the present proceedings.”

11   The parties have read a number of affidavits. There has not been any cross-examination. Largely, the task for the court is to deal with questions of statutory construction in the light of the affidavit material.

12   It is now convenient to turn to certain provisions of both statute and regulation which have been referred to by counsel.

13   There is the Retirement Villages Act 1989 (the Act). For completeness, I should mention that the Parliament has enacted the Retirement Villages Act 1999. It repeals the Act. However, it is common ground, that the 1999 legislation has no application to the questions raised in these proceedings.

14   The Act is described in the preamble as an act relating to the termination of occupation rights of residents in retirement villages, and to confer on what is now the Residential Tribunal (the Tribunal) jurisdiction with respect to certain matters relating to retirement villages and for other purposes.

15 Section 3 is a definition provision. The definitions include the following:-
“ ‘administering authority’, in relation to a retirement village, means the person by or on whose behalf the retirement village is administered and includes a person (other than a resident) who owns land within the village;
‘code’ means any code of practice prescribed under the Fair Trading Act 1987 which relates to retirement villages;
‘residence contract’ means a contract, agreement, scheme or arrangement by which a person obtains the right to occupy residential premises in a retirement village, and may take the form of a lease or licence;
‘retirement village’ means a complex containing residential premises (whether or not including hostel units) predominantly or exclusively occupied, or intended to be predominantly or exclusively occupied, by retired persons in pursuance of--
(a) a residential tenancy agreement or any other lease or licence; or
(b) a right conferred by shares; or
(c) the ownership of residential premises subject to a right or option of repurchase or conditions restricting the subsequent disposal of the premises; or
(d) any other scheme or arrangement prescribed for the purposes of this definition,
and for the right to occupy which those persons are or will be required to pay or donate money;”

There are other definitions (these include “residence rules”, “resident” and “retired person”).

16 Section 5 deals with the application of the Act. It is in the following terms:-
“This Act applies to retirement villages, to which a code applies, established before or after the commencement of this section, and so applies despite the terms of any contract, agreement, scheme or arrangement, whether made before or after the commencement of this section.”

17 Part 3 of the Act is headed “Rights of Residents And Administering Authorities”. It confers jurisdiction on the Tribunal. It comprises sections 14 - 30. Section 14 is a lengthy provision which is headed “Applications to Tribunal relating to disputes”. Subsection (1) enables application to be made to the Tribunal by either a resident or the administering authority in respect of a dispute (including a dispute between residents). Apart from sections 23 and 24, the remaining provisions deal with applications that may be made by either of them (including for an order terminating the residence contract) and/or powers had by the Tribunal in respect of them. Section 14A was inserted by the amending Act of 1998 (it enables application to be made to the Tribunal relating to disputes about proposed budgets for the purpose of resolving a budget impasse).

18 Sections 15, 16, 17, 20 and 21 further relate to the matter of termination of the resident’s occupation of residential premises. Section 24 relates to recovery of possession. Sections 27 - 29 relate to abandonment.

19 Section 15 is headed “Termination of right to occupy premises in retirement village”. It is in the following terms:-
“A resident of a retirement village who is entitled to occupy residential premises under a residence contract has a right of occupation that terminates only in one of the following circumstances:
(a) when the resident dies; or
(b) if the residence contract is terminated by the resident in accordance with the residence contract; or
(c) if the resident abandons the residential premises; or
(d) if the residence contract is terminated by the Tribunal under this Act.”

20 Section 16 is headed “Termination of occupation on medical grounds”. It enables the Tribunal, on application by the authority to make an order terminating the residence contract. Section 17 enables the authority to apply to the Tribunal for an order terminating the residence contract and fixing a date by which the resident must vacate the residential premises where the resident breaches the residence contract or the residence rules of a retirement village. Sections 20 and 21 enable the authority to apply for termination and other orders where the resident causes serious damage or injury or where the authority would otherwise suffer undue hardship. Like section 15, section 24 makes no reference to the authority. It prohibits any person from entry for the purpose of recovering possession of residential premises without a judgment, warrant or order of a court or the Tribunal and creates a statutory offence.

21 Section 23 is headed “Prohibition on certain recovery proceedings in courts etc.” It is in the following terms:-

“No proceedings in the Supreme Court, the District Court or a Local Court to obtain recovery of possession of residential premises occupied by a resident of a retirement village under a residence contract shall be commenced by the administering authority of the retirement village against the resident.”


22   There is the Fair Trading Act of 1987/Regulation . It states that the Regulation may be cited as the Retirement Village Industry Code of Practice Regulation 1995 (the Code). It further states that for the purposes of section 75 of the Fair Trading Act 1987, the Retirement Village Industry Code of Practice set out in Schedule 1 is a prescribed code of practice.

23   Largely, the content of the Code was not regarded as being of significance for present purposes. However, it seems to me to be helpful to set out some of its provisions.

24   It has an introduction which contains inter alia the following:-

“1. Introduction

(1) This Code sets out what is considered to be good practice for fair dealing in the promotion, sale and operation of retirement villages. The Code is complementary to the Retirement Villages Act 1989.

(2) This Code is the product of extensive consultation between relevant industry and consumer groups, the Department of Consumer Affairs, the Office of Real Estate Services and other relevant government bodies.

(3) The code of practice format has been adopted because of its inherent flexibility. Using the broad framework of the Fair Trading Act 1987, this Code allows the Government to introduce obligations that meet the needs of all parties in specific industries while avoiding the complexities and expense of detailed legislation.

(4) As part of this flexible approach, it is intended that the effectiveness of this Code will be reviewed periodically in consultation with industry and relevant organisations and that amendments will be made when required.”

25   The word “management” is defined in the following terms:-
“ ‘management’ , in relation to a retirement village, means the person by or on whose behalf the retirement village is administered, and includes a person (other than a resident) who owns land within the village, and has the same meaning as ‘administering authority’ in the Retirement Villages Act 1989;”

26   There is a provision in the Code that says it is mandatory. The legal effect of this provision has been considered in Overton . It was said that the rights and obligations for which the Code provides are generally expressed in the broad language of policy objectives rather than the more precise terminology suited to a contractual relationship. It was said that the presently material legal effect of the Code was, and is, to provide a basis for the imposition of restrictions and to give effect to rights under the Code by undertaking or order as provided for by the Fair Trading Act . Until that occurs, it was held that the authority was entitled to enforce residence contracts according to their terms.

27   There are provisions as to the application of the Code. The provisions are in the following terms:-

“4. Application

(1) The provisions of this Code apply to all suppliers and consumers involved in the retirement village industry, including the following:

(a) promoters;
(b) developers;
(c) those who sell property or interests;
(d) management;
(e) residents.

(2) This Code applies:

(a) to existing as well as to new retirement villages; and
(b) whether payment for the right to occupy premises in the retirement village is made by entry payment or donation or otherwise; and


(c) to the Crown.

(3) This Code does not apply to nursing homes unless they are fully resident-funded.

(4) This Code applies to a resident who is a retired person and who, under a residence contract, continues to occupy residential premises in a complex that was a retirement village when the resident entered into the residence contract, and also applies to suppliers, consumers and management involved in the retirement village industry in relation to that resident.”
28   There are provisions concerning the objectives of the Code. The provisions are in the following terms:-

“5. Objectives of this Code

The objectives of this Code are as follows:

(a) to clarify the rights and obligations of residents and management of retirement villages and by doing so to promote fair trading practices in the retirement village industry;
(b) to facilitate the disclosure of all important information relevant to a person who is considering entering a particular retirement village;
(c) to require contract documents for retirement village accommodation to contain full details of the obligations and entitlements of residents and management;
(d) to facilitate resident input, where desired by residents, into the management of retirement villages;
(e) to establish appropriate mechanisms for the resolution of any disputes between residents and management or between residents;
(f) to encourage the promotion and development of retirement villages in accordance with this Code.”

29   The Code contains general principles guiding village management. It provides that a retirement village may have a set of village rules.

30 The separate questions are thrown up by reason of matters raised in the pleadings filed by the defendants/cross-claimants. Certain of the questions raise issues of some complexity. Largely, this is due to deficiencies in the draftsmanship of the Act. It appears that over the years retirement villages have undergone change. It may be that these developments were not foreseen by the draftsman.

31 I now turn to the first question. I have already set out certain matters which have been the subject of agreement for the purpose of dealing with the separate questions. The task for the court is to approach the questions in the light of that agreement. The defendants/cross-claimants contend that the fourteen units owned by the plaintiff are a retirement village within the meaning of section 3(1) of the Act. As appears from what has been earlier said, the plaintiff opposes this contention.

32 At the outset, mention should be made of one matter. The Act was amended in 1998 to introduce inter alia a new section 5A. In my view, this section has no application in the present case. Largely, this seems to be common ground between the parties.

33 Before proceeding further, I should deal with one other matter. The Act has application to retirement villages only where a code applies (section 5). As the law presently stands, the Code has been held to be valid and have application to retirement villages (see Overton) .

34 The plaintiff has made alternative submissions. The first of the two alternatives is that the Act does not apply to the Village as it now exists and involves the consideration of provisions of the Fair Trading Act 1987 and of the Code. For present purposes it is unnecessary to pursue those submissions. The second of the two alternatives proceeds on the basis that the Act does have application to retirement villages.

35 The Village was established as a retirement village. It seems that at some stage it was in single ownership with a single operator. Whilst the evidence as to what has happened since is at times sketchy, at least in recent times it has undergone change. The conversion to Strata Title enabled individual ownership of units (there are now eleven individual lot owners and the common property is vested in the body corporate). There is a manager for certain purposes (the managing agent has the powers, authorities, duties and functions that may be conferred upon him by agreement). The evidence does not suggest that there is any contract or other arrangement for the administering of the village complex as a whole. Save for the administration services provided in relation to the strata scheme, there appears to be no entity (person or otherwise) administering to the Village as a whole complex. The evidence does not suggest that, at least presently, there are village rules or a disputes committee. Save as to what is done by the strata manager, the evidence does not suggest that there is now a budget as envisaged by section 14A and the Code or preparation of accounts for the Village.

36   One aspect of the definition is that there be a “complex”. Whether or not the fourteen units are a complex in the relevant sense, is a principal matter in issue. What was indisputably a retirement village complex, is now land upon which stands fourteen units which are in single ownership (occupied by the defendants/cross-claimants pursuant to licence) and ten units which are individually owned together with the common property (owned by the body corporate). There are six separate buildings and the fourteen units are scattered throughout those buildings. The common property is controlled and managed independently of the plaintiff. It could be expected that there may be some communal amenities (on this matter the evidence is not helpful) and that the plaintiff would have no management role in respect of any such amenities.

37   The attention of the court has been invited to a dictionary meaning of “complex”. Many meanings are ascribed to the word (including “composed of inter-connected parts”; “compound”; “composite” and “a complex whole or system”).

38 In the circumstances of this case, I do not consider that the units owned by the plaintiff are a “complex” within the meaning of the definition and, accordingly, they are not a “retirement village” within the meaning of the Act. Therefore the first question is answered “no”.

39   The second question only arises if a “yes” answer is given to the first question. The third question only arises if a “no” answer is given to the first question.

40   The statutory definition of “administering authority” is in some respects a puzzling provision. It commences with an expression that it means the person by or on whose behalf the retirement village is administered. Save for what subsequently appears in the definition, the concept of “administering” is given no further exposition. The definition concludes with an expression that “administering authority” includes a person (other than a resident) who owns land within the Village.

41   It could be described as troublesome and largely unhelpful. For a person to satisfy the definition, it needs to be demonstrated that the function of administering the Village is being performed (he is the person by or on whose behalf the retirement village is administered). The person may be an owner of land within the Village.

42   A dictionary meaning of “administer” throws up inter alia the concepts of “to manage or have charge of or to provide assistance”. In the context of the legislation, a role of management seems to have been intended.

43 Part 3 could be expected to throw some light on the question. There are provisions contained therein which give the authority locus standi to apply to the Tribunal. Apart from the applications that may be made pursuant to section 14, the person can apply to it for an order terminating the residence contract and for relief where premises have been abandoned. The person is prohibited from commencing proceedings in inter alia the Supreme Court to obtain recovery of residential premises occupied by a resident. Generally speaking, that is the extent to which the statute deals with the role of the administering authority.

44 I have already set out the introduction to and the objectives of the Code. It is said to be complimentary to the Act. It is also instructive to look at some of the roles allocated to management under the Code. There is a responsibility of facilitating quiet enjoyment of both personal accommodation and any communal amenities. Management is to ensure that accounts for the Village have been prepared in accordance with prescribed standards. There are general obligations as to disclosure (in relation to information, advertising, sales promotion, fees and charges and contract information). There are rules in relation to a budget and disputes.

45   In Howes v Christian Enterprises Limited (Cowdroy AJ, unreported 26 November 1996) it was held that a previous owner of land within the Village (Christian Enterprises Limited) was the administering authority. The relevant circumstances in this case are somewhat different to those in the proceedings before Cowdroy AJ. In my view, that decision is distinguishable. It was decided on its own particular facts. In any event, I prefer a different approach to the question.

46 The finding of Cowdroy AJ was expressed to be based on certain facts. It appears that the Acting Judge proceeded on an assumption that the Act and the Code required a retirement village to be controlled by an “administering authority” or “management”. There is no express provision to that effect. As this matter was not the subject of argument before me, I put it aside for present purposes. The Acting Judge proceeded also on the basis that “It is the duty of management, or the ‘administering authority’ to ensure compliance with the village rules, to comply with the Code and to undertake tasks prescribed by the Regulations”. I am unable to accept that this observation accurately states the position. I may add that the observation of the Acting Judge is not consistent with what was later said in Overton . Further, the Acting Judge seems to have placed weight on what he describes as an acknowledgment by the first defendant before the Tribunal that it was the administering authority.

47   The defendants/cross-claimants say that there are various matters which are carried out by the plaintiff which are matters which an administering authority would carry out. These are said to include the receiving and charging of rent, supplying residents with information about their residence, paying bills (such as rates and other bills) and strata fees in relation to the unit, receiving and answering correspondence in relation to the unit and to the retirement village of which it forms part and carrying out repairs. Further, it is said that mere ownership may be sufficient and that it involves administering a unit in the sense of paying rates and performing other roles.

48   In this case, the village complex is not merely the fourteen units. There are ten other units and common property over which the plaintiff has no management role. Largely, the house rules are in the nature of licence conditions and do not contain provisions for the conduct, management and operation of the Village. The activities performed by the plaintiff fall into the category of things normally done by an owner/licensor of the fourteen units. Largely, what is done is individual to each unit.

49   The application of the definition requires a finding that the relevant person is the party who is administering the Village. Each case will turn on its own particular facts. In my view, the evidence in this case does not lead to the finding that the plaintiff is the person by or on whose behalf the retirement village is administered (whether the Village be regarded as a whole or merely as the fourteen units).

50 It follows from what has been found that, in my view, section 23 has no application to these proceedings. These are not proceedings commenced by “the administering authority”.

51   The plaintiff has made the following submission:-
“Upon the true construction of s.15 of the Act, it is submitted that the ‘right of occupation’ is a right to occupy residential premises within a retirement village when they are administered by an administering authority (or a person deemed to be an administering authority pursuant to section 5A(2)(b) where the premises are no longer part of a retirement village).”

52 Section 15 is expressed in terms of a provision which identifies the circumstances in which the right of occupation of a resident of a retirement village who is entitled to occupy residential premises may be terminated. The terms of the section make no reference to “administering authority”. The defendants/cross-claimants say that the Act specifies the only four ways in which a residence contract may be terminated and that termination by the plaintiff requires the intervention of the Tribunal. At first blush, this argument has appeal. However, it seems to me that the section needs to be read in its context.

53 Section 15 is to be found in Part 3 which purports to deal with rights of residents and administering authorities. Part 3 establishes a regime intended largely to deal with matters arising between a resident and the authority and the jurisdiction thereby conferred is given to the Tribunal. The section applies to a resident of a retirement village (who is entitled to occupy residential premises under a residence contract). An element of the definitions of each of “resident”, “residential premises” and “residence contract” is “a retirement village”. I have already found that the plaintiff is not an “administering authority” and that the fourteen lots owned by it are not “a retirement village” in the relevant sense.

54 The section provides for the termination of the right of occupation only in one of the four stipulated circumstances. Subsection (a) provides for termination when the resident dies. Subsection (b) provides for termination by the resident. Subsection (c) provides for termination if the resident abandons the residential premises. Under section 27, the authority may apply to the Tribunal for an order that declares that residential premises were abandoned. Subsection (d) requires termination by the Tribunal under the Act. Subsection (d) has in contemplation the other provisions contained in Part 3 relating to termination by the Tribunal (sections 16-17 and 20-21). Under those provisions, the locus standi to apply for termination is given to the authority.

55 When section 15 is viewed in context it can be seen as part of the regime established by the Act largely for the resolution of disputes between resident and authority before the Tribunal. It seems to me that the section has application where the termination involves a resident and the administering authority and/or the Tribunal has jurisdiction. It is a regime which recognises jurisdiction had by the courts (see inter alia sections 23, 24 and 30).

56 The plaintiff is entitled to bring proceedings in this Court to recover licence fees. This is not in dispute. The Act does not purport to invest the Tribunal with exclusive jurisdiction. However, the defendants/cross-claimants say that it is not the correct forum and that the claim should be remitted to the Tribunal.

57 If the plaintiff is not an (or “the) administering authority, it has no locus standi to make an application to the Tribunal pursuant to section 14. Whilst this observation deals with the question in issue, I should mention certain other matters agitated during argument. The Tribunal has been given jurisdiction to hear disputes concerning matters (including recovery of licence fees) which fall within the jurisdiction conferred by section 14. It has jurisdiction to hear what may be described as tenancy matters under other legislation. The quantum of the amount in dispute may well usually make it an appropriate forum. There are costs consequences in this Court which would make the recovery of smaller sums unattractive and there is no monetary limit on the jurisdiction of the Tribunal. The court has received conflicting submissions on the matter of interest. Whilst the Act does not confer any express power to order interest, the court has been informed that Regulation 30 ( Residential Tribunal Regulations ) allows interest to be charged on orders for payment of money. In the present case, not only is an authority not involved, but there is a claim for relief under the Contracts Review Act 1980. This legislation restricts the granting of relief under its provisions to the jurisdiction of either the Supreme Court or the District Court. For completeness, I should add that the defendants/cross-claimants have indicated that if the Tribunal did not have jurisdiction to deal with the claim for relief under that Act they would waive their entitlements to relief.

58   The separate questions are answered as follows:-
1. No;
2. Does not apply;
3. No;
4. Does not apply;
5. No;
6. Does not strictly apply, but no.

59   The parties have not addressed on the matter of costs. However, subject to further hearing from counsel, it would appear to be a case where the normal rule of costs following the event should apply.

60   The Exhibits may be returned.
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Last Modified: 09/25/2000