Helen Dowling and James Dowling v Living Choice Australia Ltd

Helen Dowling and James Dowling commenced proceedings against Living Choice Australia Ltd, seeking to hold the respondent responsible for the repair of an air conditioning unit within their retirement village premises. The case was heard by the Civil and Administrative Tribunal of New South Wales, which is empowered to hear and determine disputes arising under the Retirement Villages Act 1999.

The central legal issues for the tribunal to consider were whether the respondent owed a duty of care to the applicants to maintain the air conditioning unit, and if so, whether this duty had been breached. The applicants argued that the air conditioning unit was in a state of disrepair, posing a risk to their health and wellbeing, and that the respondent had failed to rectify the issue despite numerous requests. The respondent, on the other hand, contended that the air conditioning unit was not within its responsibility as the maintenance and repair of such units fell outside the scope of the retirement village's obligations under the Act.

The tribunal found that the respondent did owe a duty of care to the applicants to ensure the air conditioning unit was in a safe and functional state. It held that the disrepair of the unit constituted a breach of this duty, and that the respondent was responsible for the cost of repairs and replacement as required by the Retirement Villages Act 1999. The tribunal found that the respondent had failed to take reasonable steps to address the issue, despite the applicants' complaints and requests for repair.

Accordingly, the tribunal ordered that the respondent accept responsibility for the air conditioning unit and charge the cost of repairs and replacement as required by the Act. This decision reinforces the obligations of retirement village operators under the Act to maintain and repair common areas and facilities to ensure the safety and wellbeing of residents.