Golding v Lusping Pty Ltd No 2

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Golding v Lusping Pty Ltd No 2 [2020] QCATA 150

PARTIES:

PAUL HENRY GOLDING

(applicant)

v

LUSPING PTY LTD

(respondent)

APPLICATION NO/S:

APL340/19

ORIGINATING APPLICATION NO/S:

OCL075-18

MATTER TYPE:

Appeals

DELIVERED ON:

30 October 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Howard
Member Lumb

ORDERS:

1.   The appeal is allowed.

2.   The decision of the Tribunal dated 21 November 2019 is set aside.

3.   It is declared that the charges payable by the Applicant under subclause 3.1.1(i) of the written agreement headed ‘Residence Contract and Service Agreement’ dated 22 November 2016 (‘the Residence Contract’) were not able to be, and may not be, increased above the CPI increase stipulated by clause 3.1.3 of the Residence Contract.

4.   It is ordered that future charges payable by the Applicant under subclause 3.1.1(i) of the Residence Contract shall be calculated by reference to the invoiced fee for June 2018 of $154.27 (plus GST) with any increase limited to the CPI increase stipulated by clause 3.1.3 of the Residence Contract.

5.   It is ordered that, within 14 days of date of delivery of these reasons, the Respondent pay to the Applicant the sum of $227.40.

6.   It is directed that the Applicant file in the Tribunal and serve on the Respondent, written submissions, no longer than 5 pages, on the question of costs including submissions in response to the application of the Respondent for costs of the application for leave to appeal and appeal by 4.00pm on 20 November 2020.

7.   It is directed that the Respondent file in the Tribunal and serve on the Applicant any written submissions, no longer than 5 pages, in response by 4.00pm on 11 December 2020.

8.   Unless otherwise ordered by the Appeal Tribunal, the application for costs will be heard and determined on the papers, without an oral hearing, not before 4:00pm on 11 December 2020.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – where leave to appeal previously granted – whether Applicant entitled to substantive relief – whether relief available under s 191 of the Retirement Villages Act 1999 (Qld) – orders made considered to be just to resolve the dispute

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 147(3).

Retirement Villages Act 1999 (Qld), s 21, s 22, s 191, s 210.

REPRESENTATION:

Applicant:

Self-represented

Respondent:

Butler McDermott Lawyers

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

Introduction

1. By a Decision delivered on 10 September 2020 in this matter, this Appeal Tribunal granted leave to appeal to the Applicant, Mr Golding.

2. The reasons for the original Decision (‘the Initial Reasons’) are to be read in conjunction with these Reasons for Decision, including the nomenclature adopted in the Initial Reasons.

3. In addition to the grant of leave to appeal, the following orders were also made (numbered 2 to 4 inclusive):

   2.…