Glenfield Grange Estates Pty Ltd v Telford

[2021] QCAT 11

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Glenfield Grange Estates Pty Ltd v Telford [2021] QCAT 11

PARTIES:

GLENFIELD GRANGE ESTATES PTY LTD

(applicant)

v

BARBARA TELFORD AS EXECUTOR OF THE ESTATE OF GLADYS MARGARET GREEN

(respondent)

APPLICATION NO:

OCL042-19

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

13 January 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

The application for an extension of time to purchase a unit is dismissed.

CATCHWORDS:

REAL PROPERTY – RETIREMENT VILLAGES – where residents required a retirement village scheme operator to purchase their units in the scheme – where the operator sought an extension of time to do that by application to the Tribunal – where seven of the eight residents seeking sale to the operator withdrew from the proceedings in the course of the proceedings – where the respondent as remaining resident seeking sale to the operator independently sold her unit to a third party in the course of the proceedings – where the respondent at a directions hearing asked for compensation if an extension of time was granted – where no order extending time was necessary given the sale of the respondent’s unit to a third party – where there was no response or counter-application filed – whether the claim to compensation independent of counter-application was within the jurisdiction of the Tribunal to determine

Retirement Villages Act 1999 (Qld) s 21, s 63A, s 63B,
s 171A, s 191, s 209, s 210

Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 48, r 50

REPRESENTATION:
Applicant:	Self-represented by D Sweetapple
Respondent:	Self-represented
APPEARANCES:	This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

1. Ms Telford is the executor of the estate of her mother, Gladys Margaret Green.

2. Mrs Green was a resident of Glenfield Grange Retirement Village (‘the village’) in Toowoomba from 23 April 1998. Glenfield is the scheme operator of the village. The village consists of 64 freehold strata titled units. Mrs Green owned a unit (Villa 4). She left Villa 4 to move into a care home in December 2015.

3. Mrs Green passed away on 15 May 2017. Probate of her will was granted to Ms Telford as executor of her estate on 25 August 2017.

4. Villa 4 had been placed on the market for sale in March 2016. Though listed with three sets of real estate agents it had not sold when Glenfield filed the within application in the Tribunal.

5. Glenfield applied for the following relief:

   That the Tribunal use its powers pursuant to section 171A of the RVA to grant an extension of the requirement to purchase the Units under section 63A of the RVA.

6. RVA is a reference to the Retirement Villages Act 1999 (Qld) (‘RVA’). Villa 4 was one of eight units residents wanted Glenfield to buy as at the date of filing of the application in the Tribunal.

7. Glenfield joined and sought the same relief against all eight unit owners as respondents to the application.

8. Over the course of the conduct of the action all save Ms Telford have been removed from the proceeding as respondents.

9. On 30 August 2019 a contract of sale was entered into between Ms Telford as executor and a third person in respect of Villa 4. It settled on or about 6 November 2019.

10. On 30 July 2019 Ms Telford filed submissions in the Tribunal. The matter was listed for directions (only) on 12 August 2019 and the submissions were said to be for use in that “hearing”.

11. The submissions in large part addressed her opposition to the extension of time sought by Glenfield. In the last paragraph Ms Telford added however:

    Although I object to the application as a whole, if the Tribunal is minded to grant an extension of time to the Scheme Operator, I request in the alternative that the extension be granted on the condition that the scheme operator indemnify the owners of the units from any ongoing charges associated with the ownership of the unit, including body corporate charges, Council rates, water rates and electricity expenses.

1. The sale of the unit (Villa 4) followed shortly after that. Given the sale of the unit, the relief sought by Glenfield became unnecessary. Glenfield did not seek leave to withdraw its application on that basis. It could have.

2. Given the absence of any application for withdrawal the Tribunal made directions about filing and exchanging further statements of evidence.

3. In the subsequent statements of evidence and submissions the parties addressed only the matter of costs and charges incurred by the estate up to time of sale, that is, Ms Telford’s claim for compensation. That was regardless of the fact that Ms Telford had not filed any response to the claim by Glenfield for an extension of time for Glenfield to purchase units nor had she filed a counter-application seeking the compensation simply mentioned in her submissions filed for the directions hearing on 12 August 2019.

The Retirement Villages Act

1. The RVA provides:

   21 What is a retirement village dispute

   (1) A retirement village dispute is a dispute between a scheme operator and a resident of a retirement village about the parties’ rights and obligations under the resident’s residence contract or this Act.

   (2) For subsection (1), a retirement village dispute includes a dispute about compliance by a scheme operator or a resident with this Act, whether or not a particular failure to comply is an offence against this Act.

   (3) In this section—

   resident includes a former resident.

   …

22 What is a retirement village issue

A retirement village issue is—

(a) a retirement village dispute; …

63A Scheme operator must enter into and complete contract to purchase freehold property

(1) This section applies if the former resident’s residence contract is based on a freehold interest in an accommodation unit.

(2) The scheme operator must enter into a contract under this section to purchase the former resident’s freehold property, and complete the purchase under this section …

(3) The scheme operator must enter into the contract and complete the purchase within the time required under section 63B.

…

63B Timing of purchase

(1) This section states the requirements for section 63A(3).

(2) The scheme operator must enter into the contract in sufficient time for the purchase to be completed under subsection (3).

(3) The scheme operator must complete the purchase under the contract by the latest of the following days—

(a) the day that is 18 months after the termination date;

(b) if the former resident has died—the day that is 14 days after the operator is shown the probate of the former resident’s will or letters of administration of the former resident’s estate;

(c) the day fixed by the tribunal by an order under section 171A.

171A Operator may apply for extension of time for payment of exit entitlement or mandatory buyback

(1) A scheme operator may apply to the tribunal for an order extending the time by which the operator must—

(a) pay the exit entitlement of a former resident under section 63(1)(c); or

(b) complete the purchase of a former resident’s freehold property under a contract under section 63A.

(2) The tribunal may make an order fixing a later day by which the operator must do the thing mentioned in subsection (1)(a) or (b) if satisfied—

(a) for a payment mentioned in subsection (1)(a)—the operator is unlikely to be able to sell the right to reside in the former resident’s accommodation unit before the day payment is required under section 63(1)(c); and

(b) if the order is not made, the operator is likely to suffer undue financial hardship; and

(c) the order would not be unfair to the former resident, having regard to any submissions made by the former resident about hardship he or she is likely to suffer if the order is made.

191 Tribunal orders generally

(1) The tribunal may make the orders the tribunal considers to be just to resolve a retirement village issue.

(2) For example, the tribunal may make any 1 or more of the following orders—

(a) an order for a party to the issue to do, or not to do, anything (an enforcement order);

(b) an order requiring a party to the issue to pay an amount (including an amount of compensation) to a specified person (a payment order);

…

209 Tribunal’s function

The tribunal’s function is to hear retirement village issues that—

(a) are within the tribunal’s jurisdiction; and

(b) it is appointed to hear.

210 Tribunal’s jurisdiction

(1)    The tribunal has jurisdiction to hear retirement village issues …

1. There may have been jurisdiction in the Tribunal to order compensation as mentioned by Ms Telford had the extension of time been necessary. It is not necessary to determine the matter of compensation however because with the unit concerned having been sold no extension of time is necessary. Any such order would be futile. The additional problem for Ms Telford however is that she failed to file any counter-application seeking relief by way of compensation in the proceedings and that was necessary.

The QCAT Rules

1. By the Queensland Civil and Administrative Tribunal Rules 2009 (Qld):

   48 Respondent may make counter-application except for minor debt claim

   (1) A respondent to an application or referral for a proceeding may, in response to the application or referral, apply to the tribunal for stated orders against another person, who may or may not be a party to the proceeding (a counter-application).

   (2) A counter-application may be made instead of making a separate application to the tribunal to deal with the matters in relation to which the orders are sought.

   …

   50 Requirements about counter-application

   (1) A counter-application to an application or referral must—

   (a) be made in the approved form; and

   (b) other than for a minor civil dispute, be included in or attached to the respondent’s response to the application or referral.

   …

2. Ms Telford did not file a response or response and counter application to the claim by Glenfield. Without filing a response she was not entitled to pursue a counter-application. A counter-application must be included in or attached to the response. She was also required to pay a filing fee for any counter-application, which was not done.

3. Given there is no counter-application filed, the Tribunal cannot make discrete orders about compensation. The Tribunal has jurisdiction to hear retirement village issues (only) within the tribunal’s jurisdiction. The Tribunal finds itself with no jurisdiction to deal with Ms Telford’s claim for compensation in the scope of the present proceedings.

4. I might note the relief suggested by her in her submissions filed for the directions hearing on 12 August 2019 was in any case only contingent on the Tribunal making an order extending time. She asked for the following:

   … the extension be granted on the condition that the scheme operator indemnify the owners of the units from any ongoing charges associated with the ownership of the unit, including body corporate charges, Council rates, water rates and electricity expenses.

5. There has been no extension of time granted by the Tribunal nor will there be. Villa 4 sold before Glenfield’s application for extension was determined. It is clear from the material filed by the parties after sale, that an extension of time was no longer a contentious issue for either party. It was no longer necessary.

6. Whether Ms Telford is entitled to pursue an independent claim for ‘compensation’ as a village dispute through fresh proceedings in the Tribunal (and payment of a fresh filing fee) is a matter for her. But there is no jurisdiction in the Tribunal to make any award for compensation in her favour in the present proceedings which is limited to Glenfield’s application for extension of time.

7. As stated, given the sale of the unit, no extension of time is necessary and the only appropriate order is to dismiss Glenfield’s claim.