Golding v Lusping Pty Ltd - [2020] QCATA 134

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Golding v Lusping Pty Ltd [2020] QCATA 134

PARTIES:

PAUL HENRY GOLDING

(applicant)

v

LUSPING PTY LTD

(respondent)

APPLICATION NO:

APL340-19

ORIGINATING APPLICATION NO:

OCL075-18

MATTER TYPE:

Appeals

DELIVERED ON:

10 September 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Howard

Member Lumb

ORDERS:

1.     Leave to appeal is granted.

2.     Each of the parties must file with the Tribunal and serve on the other party within 28 days of delivery of these reasons:

(a)    written submissions, no longer than 10 pages, addressing the following issues only:

(i)    whether the Appeal Tribunal has power to make orders under s 191 of the Retirement Villages Act 1999 (Qld) consequent upon the findings in the Reasons for Decision that, save for the categories of payment referred to in subclauses 3.1.1(ii), (iii) and (iv) of the Residence Contract, all amounts payable by the Applicant under clause 3.1.1 of the Residence Contract may not be increased above the CPI increase stipulated by clause 3.1.3 of the Residence Contract (‘the Findings’); and

(ii)   what orders should be made, including the amount of compensation (if any) payable to the Applicant, consequent upon the Findings; and

(b) any expert accounting evidence in relation to the question of the amount of compensation, if any, payable to the Applicant, or, alternatively, a detailed calculation (showing workings) of the amount of compensation the party submits is payable (if any) to the Applicant, consequent upon the Findings.

3.     Each of the parties may file in the Tribunal and serve on the other party written submissions, no longer than 10 pages, responding to the other party’s submissions and the expert accounting evidence or detailed calculation, within 14 days of service of the other party’s submissions and material pursuant to Order 2.

4.     The costs of the Application are reserved until final orders are made on the appeal.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – whether leave to appeal should be granted – where error of law by misstating submissions – whether error of law material to decision – whether error of law in failing to apply correct version of statutory provision

REAL PROPERTY – RETIREMENT VILLAGES – whether scheme operator gave resident document containing information known to be false and misleading in breach of s 86 of the Retirement Villages Act1999 (Qld) – meaning of ‘service fee’ in residence contract – whether ss 106 and 107 of the Act permit increase in service fee in excess of express provision in residence contract – whether relief available under the Act

Acts Interpretation Act 1954 (Qld), s 14A.
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 142, s 146, s 147.
Retirement Villages Act1999 (Qld), s 3, s 21, s 22, s 37, s 71, s 86, s 97, s 100, s 103, s 106, s 107, s 170, s 191, s 209 and s 210.
Trade Practices Act 1974 (Cth), s 52.

Alafaci…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] QCATA 134
Decision Date: 10 September 2020

CaseChat Overview and Summary

Golding v Lusping Pty Ltd involved a dispute between a resident of a retirement village, Golding, and the operator of the village, Lusping Pty Ltd. The case centred around the legality of fees charged by the operator, with Golding alleging that certain fees were increased in breach of statutory provisions and contractual terms. The decision was made by the Queensland Civil and Administrative Tribunal (QCAT) and was the subject of an appeal to a higher court. The appeal sought to determine whether the lower court had erred in its interpretation of statutory provisions and in the application of legal principles.

The primary legal issues the court needed to address were whether there was an error of law in the lower court's handling of the appeal and whether such errors were material to the outcome. Specifically, the appeal questioned whether the lower court misstated the submissions of the parties and whether it failed to apply the correct version of a statutory provision. Additionally, the court had to consider the meaning of 'service fee' in the context of the residence contract and whether statutory provisions permitted an increase in fees beyond what was expressly stated in the contract.

In its reasoning, the court found that the lower tribunal had indeed made errors in its interpretation of the law and in its application of statutory provisions. These errors were deemed material as they directly impacted the decision. The court clarified the meaning of 'service fee' and ruled that the statutory provisions did not allow for an increase in fees beyond the terms of the contract unless explicitly permitted. Consequently, the appeal was successful, and leave to appeal was granted. The court ordered the parties to submit detailed written arguments and calculations regarding the compensation owed to Golding, reserving the decision on costs until final orders were made.

In conclusion, the court's decision was to grant leave to appeal, directing the parties to submit further written submissions and evidence regarding compensation. This ruling not only addressed the errors of law identified but also set the stage for further proceedings to determine the precise amount of compensation due to Golding.

Orders

Orders of the court

1. Leave to appeal is granted.

2. Each of the parties must file with the Tribunal and serve on the other party within 28 days of delivery of these reasons:

(a) written submissions, no longer than 10 pages, addressing the following issues only:

(i) whether the Appeal Tribunal has power to make orders under s 191 of the Retirement Villages Act 1999 (Qld) consequent upon the findings in the Reasons for Decision that, save for the categories of payment referred to in subclauses 3.1.1(ii), (iii) and (iv) of the Residence Contract, all amounts payable by the Applicant under clause 3.1.1 of the Residence Contract may not be increased above the CPI increase stipulated by clause 3.1.3 of the Residence Contract (‘the Findings’); and

(ii) what orders should be made, including the amount of compensation (if any) payable to the Applicant, consequent upon the Findings; and

(b) any expert accounting evidence in relation to the question of the amount of compensation, if any, payable to the Applicant, or, alternatively, a detailed calculation (showing workings) of the amount of compensation the party submits is payable (if any) to the Applicant, consequent upon the Findings.

3. Each of the parties may file in the Tribunal and serve on the other party written submissions, no longer than 10 pages, responding to the other party’s submissions and the expert accounting evidence or detailed calculation, within 14 days of service of the other party’s submissions and material pursuant to Order 2.

4. The costs of the Application are reserved until final orders are made on the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Golding v Lusping Pty Ltd [2020] QCATA 134
PARTIES:	PAUL HENRY GOLDING (applicant)
v
LUSPING PTY LTD (respondent)
APPLICATION NO:	APL340-19
ORIGINATING APPLICATION NO:	OCL075-18
MATTER TYPE:	Appeals
DELIVERED ON:	10 September 2020
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Senior Member Howard Member Lumb
ORDERS:	1. Leave to appeal is granted. 2. Each of the parties must file with the Tribunal and serve on the other party within 28 days of delivery of these reasons: (a) written submissions, no longer than 10 pages, addressing the following issues only: (i) whether the Appeal Tribunal has power to make orders under s 191 of the *Retirement Villages Act 1999* (Qld) consequent upon the findings in the Reasons for Decision that, save for the categories of payment referred to in subclauses 3.1.1(ii), (iii) and (iv) of the Residence Contract, all amounts payable by the Applicant under clause 3.1.1 of the Residence Contract may not be increased above the CPI increase stipulated by clause 3.1.3 of the Residence Contract (‘the Findings’); and (ii) what orders should be made, including the amount of compensation (if any) payable to the Applicant, consequent upon the Findings; and (b) any expert accounting evidence in relation to the question of the amount of compensation, if any, payable to the Applicant, or, alternatively, a detailed calculation (showing workings) of the amount of compensation the party submits is payable (if any) to the Applicant, consequent upon the Findings. 3. Each of the parties may file in the Tribunal and serve on the other party written submissions, no longer than 10 pages, responding to the other party’s submissions and the expert accounting evidence or detailed calculation, within 14 days of service of the other party’s submissions and material pursuant to Order 2. 4. The costs of the Application are reserved until final orders are made on the appeal.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – whether leave to appeal should be granted – where error of law by misstating submissions – whether error of law material to decision – whether error of law in failing to apply correct version of statutory provision REAL PROPERTY – RETIREMENT VILLAGES – whether scheme operator gave resident document containing information known to be false and misleading in breach of s 86 of the Retirement Villages Act1999 (Qld) – meaning of ‘service fee’ in residence contract – whether ss 106 and 107 of the Act permit increase in service fee in excess of express provision in residence contract – whether relief available under the Act Acts Interpretation Act 1954 (Qld), s 14A. Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 142, s 146, s 147. Retirement Villages Act1999 (Qld), s 3, s 21, s 22, s 37, s 71, s 86, s 97, s 100, s 103, s 106, s 107, s 170, s 191, s 209 and s 210. Trade Practices Act 1974 (Cth), s 52. Alafaci…