HN ASSET PTY LTD and DENHAM
[2024] WASAT 143
•31 DECEMBER 2024
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: RETIREMENT VILLAGES ACT 1992 (WA)
CITATION: HN ASSET PTY LTD and DENHAM [2024] WASAT 143
MEMBER: MS R PETRUCCI, MEMBER
HEARD: 18 DECEMBER 2024
DELIVERED : 31 DECEMBER 2024
FILE NO/S: CC 590 of 2024
BETWEEN: HN ASSET PTY LTD
Applicant
AND
CAROLYN DENHAM
Respondent
Catchwords:
Retirement Villages Act 1992 (WA) - Resident - Retirement Village - Residential premises - Expired short-term residence contract - Application by operator of retirement village for resident to vacate residential premises - Whether notice given to resident - Discretion of Tribunal to make orders - Date resident to vacate residential premises - Turns on own facts
Legislation:
Fair Trading (Retirement Villages Code) Regulations 2022 (WA), Sch 1, Div 7, cl 34
Property Law Act 1969 (WA), s 72
Retirement Villages Act 1992 (WA), s 3, s 17, s 17(1)(d), s 58, s 59, s 59(1), s 59(1)(a), s 59(1)(b), s 59(2), s 59(3), s 61, s 62, s 63, Pt 4, Div 5
Retirement Villages Amendment Bill 2024 (WA), s 17, s 22, Pt 2, Div 1, Pt 3
State Administrative Tribunal 2004 (WA), s 9
Result:
Application successful
Category: B
Representation:
Counsel:
| Applicant | : | Mr I Freeman and Ms A Harfoushian |
| Respondent | : | No Appearance |
Solicitors:
| Applicant | : | Lavan |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
HN Asset Pty Ltd v Commissioner for Consumer Protection [2024] WASC 358
Retirement Care Australia (Hollywood) Pty Ltd v Commissioner for Consumer Protection [2013] WASC 219
Timberside Villas Management Pty Ltd v Parker [2005] WADC 246
REASONS FOR DECISION OF THE TRIBUNAL:
Background
On 18 December 2024, I heard the application under the Retirement Villages Act 1992 (WA) (RV Act), following which I made the following orders:
The Tribunal orders:
1.Pursuant to s 59(2) of the Retirement Villages Act 1992 (WA) (RV Act), the residence contract between the applicant and the respondent is terminated.
2.Pursuant to s 59(3) of the [RV Act], the respondent must vacate the residential premises at Unit 421, 118-120 Monash Avenue, Nedlands, Western Australia by 31 January 2025.
I informed the parties that I would provide written reasons for decision. My reasons follow.
Introduction
Up to 29 June 2023, Retirement Care Australia (Hollywood) Pty Ltd was the owner and operator of the Hollywood Retirement Village situated at 118 - 120 Monash Avenue in Nedlands (the Land). The Retirement Village exists pursuant to a 'retirement village scheme' as defined in the RV Act and the provisions of the RV Act apply to the Retirement Village.
The respondent, Ms Carolyn Denham (Ms Denham), has resided at the Retirement Village since early 2017. Ms Denham currently occupies Unit 421.
On 29 June 2023, the applicant, HN Asset Pty Ltd (HN Asset)[1] became the registered proprietor of the Retirement Village situated on the Land having purchased the Land from Retirement Care Australia (Hollywood) Pty Ltd.
[1] The company was registered as a proprietary company on 4 May 2023 (see Exhibit 2).
Ms Denham states that she originally moved to the Retirement Village in early 2017 for two reasons.[2] First, so that she would 'be settled for years to come' where she 'would not need to move when the lease came up'. Secondly, she intended to walk to the nearby University of Western Australia to continue her research for a PhD.
[2] Exhibit 1 at page 226.
On or about 9 October 2023, Ms Denham notified HN Asset of her concerns about mould in Unit 421 (mould issue). HN Asset sought to address the mould issue including engaging WA Fire and Flood to assess the extent of the mould issue. As a result of the assessment, further investigation and rectification/cleaning works are needed which requires Unit 421 to be vacated.
On 22 February 2024 Ms Denham was issued a written 'Notice to Termination of Residence Contract' (notice) by HN Asset which provides that her 'residence contract' is terminated as of 23 March 2024 with a requirement for Ms Denham to vacate Unit 421 by 22 May 2024 (but was extended by a final offer to 31 August 2024 which was to be accepted by Ms Denham by 8 August 2024).
Since about October 2023, HN Asset has made various offers to Ms Denham to assist her vacating Unit 421. The open offers include financial, and relocation offers within the Retirement Village and outside the Retirement Village none of which was accepted by Ms Denham. HN Asset also arranged for the parties to attend mediation with an independent mediator but that was not successful.
Ms Denham has not vacated and continues to occupy Unit 421.
HN Asset's - application to the Tribunal and reasons for application
On 28 August 2024 HN Asset commenced the proceeding in the Tribunal under s 59(1) of the RV Act.[3]
[3] Exhibit 1 at pages 1 to 3.
It is HN Asset's position that the 'residence contract' with Ms Denham was terminated as of 23 March 2024 with the consequence that Ms Denham has no legal right to continue to occupy Unit 421.
Further, it is the position of HN Asset that Ms Denham has failed to vacate Unit 421 or to accept various offers made to her to relocate to another unit in the Retirement Village or outside of the Retirement Village.
Finally, HN Asset say they have attempted to do everything in their power to assist with and remove Ms Denham from Unit 421 following notification made by Ms Denham on 9 October 2023 of the mould issue, but to no avail.
Response of Ms Denham
As far as I can discern from the materials before the Tribunal, Ms Denham's position is that she does not want to live in the Retirement Village and that in her view, HN Asset has to find her a place to live outside of the Retirement Village.[4]
[4] Exhibit 1 at pages 97 to 101.
Procedural history and evidence
In accordance with the Tribunal's usual practice in matters of this nature, on 20 September 2024, the Tribunal made orders requiring the parties to file a book of documents on which they proposed to rely in the proceeding. Ms Denham was ordered to file her book of documents by 7 October 2024. She did not.
The matter was referred to mediation on site. The matter did not resolve at mediation.
On 25 October 2024, HN Asset sought leave of the Tribunal to amend its application to limit the orders sought to: [5]
1.The [r]espondent in the matter vacate her current residential premises, being Unit 421 of 118-120 Monash Avenue, Nedlands (Unit) within seven (7) days of this order being made by the Tribunal.
[5] Exhibit 1 at page 127 and pages 548 to 549.
The Tribunal granted leave for HN Asset to amend its application at a directions hearing on 29 October 2024.[6] Further, the Tribunal made orders for HN Asset to file a statement of issues, facts and contentions (SIFC) that it says arise in the proceeding, a book of documents and a list of persons proposed to be called to give evidence along with a written statement of the evidence. HN Asset filed its materials by 8 November 2024.
[6] Exhibit 1 at pages 708 to 709.
Ms Denham was similarly ordered to file her SIFC, book of documents and list of persons whom she proposed to call and the written statements of the evidence. This was required by 2 December 2024. Ms Denham requested and was granted two extensions of time to file her materials. The first extension was to 6 December 2024 and the second extension was to 16 December 2024. Ms Denham failed to comply with the orders of the Tribunal. Finally, the orders of 29 October 2024 confirmed that the final hearing was listed for 18 December 2024.
Final hearing - 18 December 2024
HN Asset was represented by counsel at the final hearing. Counsel for HN Asset informed the Tribunal that only one witness would be called, Mr Rowan Edwin Clarke, a director of HN Asset.
Ms Denham failed to attend the final hearing on 18 December 2024. The Tribunal telephoned Ms Denham several times both on her landline and her mobile but she did not answer.
After carefully considering Ms Denham's written request of 16 December 2024[7] to adjourn the final hearing and hearing oral submissions from counsel for HN Asset, who opposed adjourning the final hearing, and reflecting on the objectives of the Tribunal as set out in s 9 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) which include to act speedily and with little formality and technicality as is practicable and to minimise the costs to the parties, in the interests of justice, I refused Ms Denham's request to adjourn the final hearing. The following factors were relevant in my decision to proceed with the final hearing.
[7] Exhibit 1 at pages 698 to 700.
First, while Ms Denham filed various 'generic' medical certificates up to 17 December 2024, they provide little information as to Ms Denham's capacity to participate in the hearing.[8] In particular, the medical certificates do not identify the medical condition(s) said to be suffered by Ms Denham and what it is about the condition(s) that make Ms Denham 'unfit for court' and 'unfit to submit court documents'. Further, there is no current medical certificate to inform the Tribunal that Ms Denham was not able to participate in the final hearing on 18 December 2024.
[8] Exhibit 1 at pages 547, 676, 678 and 694.
Second, Ms Denham failed to file any documents in compliance with various orders made by the Tribunal. This is after the Tribunal granted Ms Denham a significant extension of time of almost two months up to 16 December 2024, being two days before the final hearing, to file the documents she intends to rely on. The Tribunal had first ordered Ms Denham to file her documents by 7 October 2024 (per order 2 of the orders made by the Tribunal on 20 September 2024), that is some three months before the final hearing.[9] This is in circumstances where Ms Denham has been on notice for more than six months, that is since 6 June 2024, that HN Asset would commence the proceeding in the Tribunal to recover possession of Unit 421.
[9] Exhibit 1 at pages 701, 710, 711 to 713.
Third, HN Asset has complied with all the orders made by the Tribunal and as explained later in these reasons has sought to work with Ms Denham concerning the mould issue in Unit 421 for over a year since October 2023 but to no avail.
Fourth, as explained later in these reasons, HN Asset issued on 22 February 2024 a written notice to Ms Denham terminating the 'residence contract' from 23 March 2024 with a requirement to vacate Unit 421 by 22 May 2024. However, Ms Denham has frustrated the efforts of HN Asset to recover possession of Unit 421 as she still occupies it some seven months after the notice was given to Ms Denham.
Hearing Book
The final hearing was conducted on the basis that all of the materials filed with the Tribunal would be regarded as being in evidence (noting that submissions are not evidence). At hearing on 18 December 2024, the Tribunal accepted the following materials into evidence:
Exhibit 1Hearing Book prepared by the Tribunal dated 17 December 2024 (pages 1 to 713); and
Exhibit 2Company extract current and historical for HN Asset dated 18 December 2024 (pages 1 to 4) handed up by the applicant at the final hearing.
Witness
Mr Clarke filed a witness statement dated 8 November 2024 for the applicant.[10] At the final hearing Mr Clarke confirmed the contents of his witness statement. Mr Clarke gave evidence about the various relocation offers made to Ms Denham on 22 February 2024, 23 May 2024, 7 June 2024, 13 June 2024, 14 June 2024, 2 July 2024 and 1 August 2024. In addition, Mr Clarke gave evidence about the mould issue including correspondence to and from Ms Denham on 9 October 2023, 17 October 2023, 3 November 2023, 9 November 2023, 12 December 2023 and 6 June 2024.
[10] Exhibit 1 at pages 574 to 675.
Factual background
Having reviewed all the evidence before the Tribunal, I make the following findings of fact.
HN Asset has since 29 June 2023 been the registered proprietor of the Retirement Village situated on the Land. On the same day, Ms Denham received a letter from Regis Pty Ltd (through its wholly owned subsidiary, Retirement Care Australia (Hollywood)) stating that it had sold the Retirement Village to Hesperia (through HN Asset as trustee for the HN Operations Trust). As a result of the sale, the document headed 'Residence Contract Centennial Close' dated 13 January 2017 for Unit 421 between Ms Denham and Hollywood Aged Care Australia (Hollywood) Pty Ltd was novated to HN Asset on 29 June 2023 (residence contract).
The residence contract for Unit 421 with Ms Denham was for a period of 12 months that commenced on 27 January 2017 and ended on 26 January 2018 (clause 1, clause 13 and Schedule 2 of the residence contract).
Since 26 January 2018 Ms Denham has continued to occupy Unit 421.
On 21 September 2023, Mr Clake wrote to Ms Denham noting plans to commence refurbishment works on the Retirement Village and development of the adjacent land. To do this, Mr Clarke set out two pathways to terminate the Retirement Village scheme. Ms Denham was requested to inform in writing if she did not consent to termination of the 'retirement village scheme'.
On 9 October 2023, Ms Denham notified HN Asset of the mould issue.
On the same date, 9 October 2023, Mr Clarke wrote to Ms Denham, stating amongst other things, 'Sorry to hear about … the mould in your unit. I am really keen to help going forward so please do let me know what I can do' and 'I would like to make sure we can resolve the mould issue you're having with your unit as soon as possible'.
On 17 October 2023, Mr Clarke gave written notice to Ms Denham requesting access to Unit 421 on 23 October 2023 between the hours of 3.00 pm to 4.00 pm to assess the extent of the mould issue.
On 3 November 2023 Mr Clarke wrote to Ms Denham noting that following the inspection on 23 October 2023, she would need to be relocated from Unit 421 to enable:
(a)further investigation to identify the source of the water ingress/damp issue;
(b)rectification of the source issue (water ingress/damp);
(c)works including cleaning and rectification of mould currently present and possible replacement/rectification of ceiling, awning and air-conditioner; and
(d)cleaning/rectification of spore infected items.
Relocation within the Retirement Village as well as outside of the Retirement Village was offered to Ms Denham in the letter of 3 November 2023. The steps to accept either the relocation within the Retirement Village and outside are set out in the letter. Ms Denham was requested to inform Mr Clarke of her preferred relocation option by 9 November 2023.
On 9 November 2023, Mr Clarke in writing to Ms Denham again noted that following the visual inspection on 23 October 2023 that there is significant works required to Unit 421 which will require Ms Denham to be relocated. Ms Denham was requested to confirm by 13 November 2023 if she seeks to be relocated within the Retirement Village in order for the relocation to occur within the next couple of weeks.
On 21 November 2023, Mr Clarke provided details of six units available in the Retirement Village from which Ms Denham was invited to notify by 24 November 2024 of her preferred unit to be relocated to.
On 30 November 2023 Ms Denham wrote to Mr Clake stating in part:[11]
All communication must always be in writing.
…
I have now spent three and a half years in this toxic mould contaminated unit[.]
[11] Exhibit 1 at page 412.
On 4 December 2023 Mr Clarke in an email to Ms Denham stated in part:
[S]ince we were first notified of the mould issues in the unit some 6 weeks ago, we have been trying to work as quickly as possible to relocate you with as minimal inconvenience to you as possible, but the process has continued to be prolonged by you. Our written communication with you these past 6 weeks have been necessary to facilitate your relocation given you do not wish to meet in person to discuss, you have sent us numerous emails to be responded to and you have not agreed to inspect the 6 units that are available to move into [.]
In an email to Ms Denham dated 12 December 2023, Mr Clarke referred to his letter to Ms Denham of 21 September 2023 where he stated that it was their intention to terminate the 'retirement village scheme' as well as to allow for the refurbishment of the Retirement Village amongst other matters. Further, according to Mr Clarke, an offer was made to Ms Denham to enter into a residential lease under the Residential Tenancies Act 1987 (WA) for a fixed-term following the Supreme Court making an order terminating the 'retirement village scheme'.
On 14 December 2023 Ms Georgia Stacey, the manager of the Retirement Village, in an email to Ms Denham stated that she was keen to help her move out of Unit 421 'as soon as possible due to the mould issue' and attached a list of steps for relocating within the Retirement Village and a list of steps for relocating outside of the Retirement Village.
In an email to Ms Stacey on 16 January 2024, Ms Denham attached a copy of her email to Mr Glenn Sproule of WA Flood and Fire including a quote to move contents of Unit 421 to another location on site.
On 22 February 2024, Mr Clarke by written notice issued to Ms Denham a 'Notice of Termination of Residence Contract' in respect of Unit 421 (notice). The notice provided that the residence contract is terminated as at 23 March 2024 (being 30 days from the date of the notice). The notice allowed Ms Denham 3 months from the date of the notice to find alternative accommodation. In other words, Ms Denham was required to vacate Unit 421 by 22 May 2024.[12]
[12] Exhibit 1 at pages 62 to 63.
In the notice, Ms Denham was offered the following by HN Asset, on the proviso she vacated Unit 421 by 22 May 2024:
(a)HN Asset pay Ms Denham's verifiable relocation costs up to $10,000 (inc GST);
(b)HN Asset pay Ms Denham's verifiable specialised cleaning costs for her personal belongings up to $11,500 (inc GST);
(c)HN Asset will waive the requirement under clause 15.9(b) and 16.2 for Ms Denham to pay the outstanding Licence Fees and Electricity Costs currently owning under her residence contract of $10,957.04 plus the Licence Fee and Electricity Costs for March, April and May 2024 estimated at $6,500; and
(d)HN Asset refund to Ms Denham following her relocation, the Licence Fees and Electricity Costs that she has paid since 1 July 2023 (less amounts already credited) being $7,920.86.
On 23 February 2024 Ms Denham in an email to Mr Clarke acknowledged receipt of the notice.[13]
[13] Exhibit 1 at page 326.
On 25 March 2024 Ms Denham agreed to attend a mediation conference with an independent mediator but only after other matters are 'completely organised and put in place'.[14]
[14] Exhibit 1 at page 84.
On 26 March 2024 Ms Stacey offered Ms Denham a temporary relocation to a nearby unit, Unit 423, which still required Ms Denham to vacate Unit 421 by 22 May 2024.
Ms Denham did not vacate Unit 421 by 22 May 2024.
On 23 May 2024, HN Asset extended the above offer (see above at [48]) provided that Ms Denham vacate Unit 421 by 22 June 2024.
On 31 May 2024 Ms Denham wrote to the independent mediator noting that she has 'been trapped in the main bedroom of this unit since December 2020, when the mould was formerly identified'.[15] Ms Denham is clear as to what is to happen when she stated:[16]
What needs to happen is someone in Hesperia who is organised, to find me a place to live outside of this village.
…
My main goal, is, as always, to quit this unit and this village where I am so ill. I need somewhere out of this village because I do not feel at all safe here[.]
…
The goal, as stated earlier, is very simple - A clean safe unit, professionally cleaned belongings, the engagement of a professional removalist and temporary insurance whilst they handle my belongings as well as my property remaining secure when I am housed elsewhere.
[15] Exhibit 1 at page 95.
[16] Exhibit 1 at page 97 to 101.
On 6 June 2024 Mr Clark wrote to Ms Denham stating in part:
You will shortly be receiving correspondence from our lawyers, Lavan, containing a further final offer to relocate within Hollywood Village or alternatively, HN Asset Pty Ltd agreeing to refer the matter to the State Administrative Tribunal as a forum for you to air your grievances and reach a conclusion.
On 7 June 2024, the legal representative for HN Asset wrote to Ms Denham extending the offer (see above at [48]) along with an offer for a temporary relocation to Unit 507 (a two bedroom unit) in the Retirement Village on the same terms as the residence contract where her occupation continues as a monthly tenant provided that Ms Denham accepts the offer by 19 June 2024 and vacates Unit 421 by 31 July 2024.
On 13 June 2024 Ms Denham requested an extension of time to consider the offer. That request was agreed to on 14 June 2024 where the time for Ms Denham to accept the offer was extended to 26 June 2024.
On 24 June 2024, the legal representative for HN Asset wrote to Ms Denham requesting that she notify by 26 June 2024 if she intends to proceed further with the relocation offer or to vacate Unit 421 by 31 July 2024. Further, the letter informs Ms Denham that if she does not contact the legal representative by 26 June 2024, that HN Asset intends to commence proceedings to recover possession of Unit 421.
On 2 July 2024, the legal representative for HN Asset wrote to Ms Denham noting that as she had not accepted the offer by 26 June 2024 that HN Asset would commence the proceeding in the Tribunal to recover Unit 421. In addition, in the letter it was suggested to Ms Denham that she obtain legal advice and to assist her do this an offer to pay a maximum of $5,000 (inc GST) for Ms Denham to obtain independent legal advice was made.
Ms Denham did not vacate Unit 421 by 31 July 2024.
On 1 August 2024, the legal representative for HN Asset wrote to Ms Denham to provide a final offer with the requirement Ms Denham notify the legal representative of her acceptance of the offer and to vacate Unit 421 by 31 August 2024. The offer was:
(a)payment of $30,000 as a one-off cash sum; and
(b)the forgiveness of the sum of $20,860 owing to HN Asset.
On 28 August 2024, HN Asset commenced the proceeding in the Tribunal under s 59(1) of the RV Act.
On 26 September 2024, the Supreme Court of Western Australia made orders terminating the 'retirement village scheme'.[17]
[17] HN Asset Pty Ltd v Commissioner for Consumer Protection [2024] WASC 358.
Ms Denham continues to occupy Unit 421.
Issues
The issues that arise in this proceeding are:
(a)Is there a 'residence contract'?
(b)Should the Tribunal exercise its statutory discretionary power to make the orders sought by HN Asset, under s 59 of the RV Act, to require Ms Denham to vacate Unit 421?
Consideration
Is there a residence contract?
It is first necessary to determine if there is 'residence contract' that is governed by the RV Act.
A 'residence contract' is defined in s 3 of the RV Act as follows:
residence contract means a contract, agreement, scheme or arrangement which creates or gives rise to a right to occupy residential premises in a retirement village, and may take the form of a lease or licence[.]
The terms 'residential premises' and 'retirement village' is also defined in s 3 of the RV Act as follows:
residential premises means any premises or part of premises (including any land occupied with the premises) used or intended to be used as a place of residence and includes a hostel unit[.]
retirement village means a complex of residential premises, whether or not including hostel units, and appurtenant land, occupied or intended for occupation under a retirement village scheme or used or intended to be used for or in connection with a retirement village scheme[.]
The document before the Tribunal is headed 'Residence contract Centennial Close'. The parties recorded are Retirement Care Australia (Hollywood) Pty Ltd and Ms Denham. It is dated 27 January 2017 and signed by Ms Denham. It makes clear reference to the RV Act and, among other things, sets out the services provided and charges to be paid by the occupier as well as what is to happen upon leaving the Retirement Village. Attached to the document is the Form 1 headed 'Information statement for prospective resident' which explains when the 'residence contract' may be terminated.
Schedule 2 to the document sets out the unit number, the licence fee payable by way of monthly instalment, the telephone connection and administration fee and car parking by licence fee. It also sets out the commencement day and the term of the contract. In this case, the term for Unit 421 is limited to 12 months with the commencement date of 27 January 2017. Therefore, the term ended on 26 January 2018.
A residence contract of 12 months or less is often referred to as a short-term residence contract which requires payment of rent and certain expenses by the resident and are for a period of 12 months or less as compared with a long-term residence contract where the resident pays a premium: Retirement Care Australia (Hollywood) Pty Ltd v Commissioner for Consumer Protection [2013] WASC 219 (Retirement Care) at [28] to [31].
The long title of the RV Act is 'An Act to regulate retirement villages and the rights of residents in such villages and for related purposes'. Although not expressly stated the objectives of the RV Act are to:
(a)outline the rights and obligations of residents, owners and operators;
(b)determine how residence contracts and retirement village schemes can be terminated; and
(c)provide cost efficient mechanisms for the resolution of disputes including orders that the Tribunal may make.
Consumer protection through appropriate regulation of retirement villages is a central feature of the RV Act. Crisford DCJ explained this in Timberside Villas Management Pty LtdvParker [2005] WADC 246 at [33] as follows:
… It is clear from a reading of the RV Act and the residency deed that the regulation of a retirement village is not a simple matter and there is obvious potential for dissatisfaction and disputes. The legislation is designed to protect residents' occupancy rights and also to resolve likely disputes. Additionally, and quite simply put, it is essential that there be effective regulation of retirement villages so older people in the community who desire to reside in such a village are treated justly and fairly in respect of their rights.
In this case, the document dated 27 January 2017 and headed 'Residence contract Centennial Close' came to an end on 26 January 2018 (that is, 12 months from the commencement date of 27 January 2017 as set out in item 5 of Schedule 2 to the residence contract). This is provided for in clause 15.8 of the residence contract as follows:
15.8Termination on expiration of this residence contract
This residence contract will come to an end and expire at the end of the Term.
However, according to HN Asset, from 26 January 2018, Ms Denham continued to occupy Unit 421 at the Retirement Village on a monthly licence[18] or holding over on a monthly basis under the residence contract until the notice was issued to her.[19]
[18] Exhibit 1 at page 328.
[19] Exhibit 1 at page 299.
The action on 22 February 2024, when Mr Clarke wrote to Ms Denham giving her notice that the '… [r]esidence [c]ontract is terminated as of 23 March 2024 (being 30 days from the date of the notice)',[20] was made pursuant to s 72 of the Property Law Act 1969 (WA) (PL Act) which provides:
72.Termination of tenancies
(1)Without prejudice to any other lawful mode of termination available or to any express agreement by the parties to a periodic tenancy or tenancy of uncertain duration as to its termination, a periodic tenancy or a tenancy of uncertain duration may be terminated by one month's written notice by either party thereto to the other expiring at any time whether at the end of a rent period or not.
(2)Notwithstanding anything in this section any mode of termination of a periodic tenancy or a tenancy of uncertain duration that was lawful before the date of the coming into operation of this Act whether by shorter notice than that provided for by subsection (1) or otherwise is as effectual as if this Act had not come into operation.
[20] Exhibit 1 at page 192.
The position of HN Asset is what was in place from 26 January 2028 was a rolling month by month residence contract which could be terminated by giving one month's written notice by reference to the PL Act. This position is supported by clause 1.1 of the residence contract which provides relevantly:
This residence contract gives you a licence to reside in your Unit … until it is terminated in accordance with this residence contract, by you or us exercising a right under this residence contract or under a law.
In this case, under the residence contract, clause 15 sets out when the residence contract may be terminated.
Relevantly, clause 15.1 provides that the operator, HN Asset, may not terminate the residence contract without first obtaining either agreement from Ms Denham or by an order of the Tribunal. In addition, clause 15.7 of the residence contract provides that Ms Denham (but not the operator) may terminate the contract at any time by giving written notice of at least 30 days.
Ms Denham stated her main goal is to 'quit' the Retirement Village. This is reflected in the notice where Mr Clarke states:[21]
We note you have now indicated a desire to vacate Hollywood Village.
…
Please confirm by return email the date you have scheduled to vacate Hollywood Village.
[21] Exhibit 1 at page 192 to 193.
In the materials before the Tribunal, Ms Denham has not retracted from her main goal. Indeed, in her lengthy correspondence of 13 August 2024 to the legal representative of HN Asset, Ms Denham is clear when she states:[22]
What needs to happen is someone in Hesperia [the Retirement Village] who is organised, to find me a place to live outside of this village.
[22] Exhibit 1 at page 227.
I am satisfied and I find that HN Asset with the agreement of Ms Denham, who has clearly expressed many times, most recently on 11 December 2024,[23] that she wants to live outside the Retirement Village, sought to terminate the residence contract in accordance with clause 15.1 of the residence contract or alternatively under s 72 of the PL Act (see above at [76]) on the basis that clause 1.1 of the residence contract provides that the residence contract is 'terminated in accordance with [the] residence contract, by [Ms Denham] or [HN Asset] exercising a right under this residence contract [clause 15.1] or under a law [PL Act]'.
[23] Exhibit 1 at page 682.
On balance, in my view, even though the short-term residence contract came to an end on 26 January 2018 and following expiry of the offer of relocation as set out in the notice, the 'residence contract' on a holding over or a tenancy of uncertain duration continues for the purposes of the RV Act between Ms Denham and HN Asset as the successor in title (s 17(1)(d) of the RV Act) for the following reasons.
First, the RV Act is consumer protection legislation and nothing in the current RV Act expressly provides that once a short-term residence contract comes to an end, that it is automatically terminated. Section 17(1)(d) of the RV Act supports the position that until the residence contract is terminated by the Tribunal the residence contract continues.
Second, the parties by their conduct have continued their relationship as operator of a retirement village and resident of residential premises.
Third, notwithstanding the 'retirement village scheme' was terminated by order of the Supreme Court,[24] the terms of the residence contract continue.[25]
[24] See above n. 17.
[25] Retirement Care at [174] to [176].
In summary, I am satisfied that there is a residence contract in this case which enlivens the RV Act.
Finally, for completeness, I note that amendments proposed to s 17 of the RV Act[26] provide that prohibition on termination do not apply to short-term residential tenancies in retirement villages. In other words, the proposed amendments confirm that short-term tenancies can be terminated in accordance with the terms of the tenancy agreement.
[26] See s 17 and s 22 of the Retirement Villages Amendment Bill 2024 Pt. 2 (Bill No 177-1) and the Explanatory Memorandum to the Retirement Villages Amendment Bill 2024 at page 12 and Pt 2, Div 1 and Pt 3 of the Retirement Villages Amendment Bill 2024 (WA) to be proclaimed (see s 2(b)).
I now turn to the consider HN Asset's application and whether it is reasonable in all of the circumstance of this case to exercise the statutory discretionary power of the Tribunal to make the orders sought.
Should the Tribunal make orders to require Ms Denham to vacate Unit 421?
Under s 17(1)(d) of the RV Act, the residence contract may be terminated when an order is made by the Tribunal terminating the residence contract.
Part 4 of the RV Act is headed 'Resolution of disputes'. The orders that the Tribunal may make to resolve a dispute are set out in Div 5 of Pt 4 of the RV Act. Sections 58, 59, 62 and 63 fall in Div 5 of Pt 4 of the RV Act and provide that the Tribunal make terminate the residence contract.
The position of HN Asset is that:
(a)Ms Denham has no legal right to continue to occupy Unit 421;
(b)Ms Denham failed to vacate Unit 421 or accept the numerous and persistent offers to relocate to another similar unit to Unit 421 at the Retirement Village or outside of the Retirement Village;
(c)it has consistently accommodated Ms Denham's needs and requests in relation to the offers made but to no avail; and
(d)it has attempted to do everything in its power to assist with, and remove Ms Denham from Unit 421 when the mould issue was brought to their attention on 9 October 2023 but to no avail.
The application made by HN Asset is made under s 59(1) of the RV Act which provides:
59.Termination of occupation on grounds of breach of residence contract or rules
(1)If —
(a)a resident of a retirement village breaches the resident's residence contract or the residence rules of a retirement village; and
(b)any procedures specified under any applicable code or the residence contract for giving notice of intention to terminate the residence contract and for termination of the residence contract have been complied with by the operator of the retirement village,
the operator may apply to the Tribunal for an order terminating the contract and fixing a date by which the resident must vacate the residential premises occupied by the resident.
(2)The Tribunal may, on application by an operator under this section, make an order terminating the residence contract, but only if the Tribunal is satisfied that —
(a)the breach, in the circumstances of the case, is such as to justify termination of the contract; or
(b)persistent breaches by the resident are, in the circumstances of the case, such as to justify termination of the contract; or
(c)having considered the circumstances of the case, it is otherwise appropriate to do so.
(3)If the Tribunal makes an order terminating a residence contract under this section, the Tribunal must fix in the order a date by which the resident must vacate the residential premises occupied by the resident.
(4)In addition to any other order the Tribunal may make under this section, the Tribunal may make an order for the payment or refund of money by an operator to a resident or by a resident to an operator.
The Fair Trading (Retirement Villages Code) Regulations 2022 (WA) (RV Regulations) is an interim code of practice that applies in relation to retirement villages including for termination of a residence contact. The RV Regulations expire on 31 March 2025. Relevantly, cl 34 of Div 7 of Sch 1 sets out the requirements to terminate a residence contract in relation to s 59 of the RV Act as follows.
34.Notice of intention to terminate
(1)The administering body of a retirement village must give a resident at least 10 working days' written notice of its intention to apply to the State Administrative Tribunal for an order to terminate a residence contract under the Retirement Villages Act 1992 section 58 or 59.
(2)The notice given under subclause (1) must —
(a)if the application is to be made under the Retirement Villages Act 1992 section 58, specify the reasons why the residential premises occupied by the resident are unsuitable for occupation by the resident; and
(b)if the application is to be made under the Retirement Villages Act 1992 section 59 —
(i)specify the breach of the residence contract or residence rules, as the case may be; and
(ii)give the resident a reasonable and specified time to rectify a breach that may be rectified;
and
(c)clearly state that the residence contract cannot be terminated without an order by the State Administrative Tribunal; and
(d)advise the resident of the resident's right to occupy the residential premises until the State Administrative Tribunal fixes a termination date.
Section 59(1) of the RV Act uses the word 'and' between s 59(1)(a) and s 59(1)(b). In my view, properly construed the word 'and' means what is stated in para (a) and (b) of s 59(1) of the RV Act provide cumulative conditions which must be both fulfilled. This is because once both conditions are fulfilled the operator may apply to the Tribunal for orders to terminate the residence contract and fix a termination date.
While Annexure D of the residence contract[27] clearly sets out what is required in the notice, in my view, the notice of 22 February 2024 itself makes no reference to cl 34 of Div 7 of Sch 1 of the RV Regulations or the items to be set out in the notice.
[27] Exhibit 1 at page 46.
However, s 61 of the RV Act provides that the Tribunal may waive defect in the notice of intention to terminate. That section relevantly provides:
… if the Tribunal thinks it appropriate to do so in the special circumstances of the case, make an order terminating the residence contract under section 58 or 59 even though any procedures specified under any applicable code or the residence contract for giving notice of intention to terminate the residence contract have not been complied with.
In my view, there are special circumstances in this case which require the Tribunal to step in to terminate the residence contract under s 59(2) of the RV Act even though strict compliance with the requirements of reg 34 of Div 7 of Sch 1 of the RV Regulations has not been met. The special circumstances of this case are as follows.
First, Ms Denham's desire is to leave the Retirement Village. The correspondence of Ms Denham is clear - her 'main goal' is to 'quit' Unit 421 and leave the Retirement Village. This was stated most recently on 11 December 2024.[28]
[28] Exhibit 1 at page 682.
Second, Ms Denham has refused all offers made by HN Asset to relocate her within the Retirement Village or outside of the Retirement Village where those offers also included financial assistance. This is in circumstances where HN Asset requires vacant possession of Unit 421 to further assess and have works undertaken to rectify the mould issue that has been in place since at least 9 October 2023 when Ms Denham notified HN Asset (but possibly dating back to 2020 as stated by Ms Denham in other materials before the Tribunal which she describes as causing her 'constant health problems as a result of the mould').[29]
[29] Exhibit 1 at page 271.
Third, Ms Denham, contrary to clause 11.7 of the residence contract has not vacated Unit 421 in order for HN Asset to undertake necessary works to rectify the mould issue.
In my view, each of the offers made by HN Asset to Ms Denham, which span over a period over 12 months, have been reasonable and despite HN Asset's efforts, Ms Denham has not sought to co-operatively resolve the matter in a timely and reasonable manner. Rather, HN Asset's proper attempts to deal with concerns raised by Ms Denham have been frustrated by her.
In summary, in my view, in all of the circumstances of this case, it is reasonable to exercise the Tribunal's statutory discretionary power to terminate the residence contract under s 59(2) of the RV Act. This is after proper attempts were made by HN Asset to deal with the concerns raised by Ms Denham, the rejection by Ms Denham to enable her concerns to be dealt with co-operatively which in the end resulted in the issue of the notice to Ms Denham which included various offers (which were adjusted to accommodate Ms Denham's needs and wishes) to relocate her in an orderly manner have now expired.
As the residence contract is terminated, s 59(3) of the RV Act requires the Tribunal to fix in the order a date by which Ms Denham must vacate Unit 421.
The orders sought by HN Asset require Ms Denham to vacate within seven days of the orders. At hearing, counsel for HN Asset made the submission that the order should be adjusted to reflect 30 days.
In my view, the order should require Ms Denham to vacate Unit 421 by 31 January 2025. I have taken the following considerations into account in reaching this conclusion.
First, Ms Denham was given notice on 22 February 2024, that is some 10 months ago, in circumstances where she states that she desires to leave the Retirement Village. Ten months is sufficient time, in my view, to explore and consider alternative accommodation options. There is no evidence before the Tribunal that Ms Denham could not secure alternative accommodation by 31 January 2025.
Second, Unit 421 is to be vacated in order for rectification works to be undertaken for the mould issue which Ms Denham brought to the attention of HN Asset on 9 October 2023, now well over 12 months ago. This is in circumstances where Ms Denham has not accepted any of the numerous offers by HN Asset to relocate her within the Retirement Village or outside of the Retirement Village.
Third, Ms Denham was given notice on 7 June 2024 by the legal representative of HN Asset that it would commence the proceeding in the Tribunal to recover Unit 421 if she did not accept a relocation offer or confirm that she would vacate Unit 421 by the stated (and agreed revised) deadline. Ms Denham has therefore been on notice for at least six months that HN Asset will commence legal proceedings to recover Unit 421.
Conclusion
The termination of the residence contract will impact Ms Denham as she must vacate Unit 421 by 31 January 2025. However, all previous offers made by HN Asset including relocating Ms Denham within the Retirement Village and outside of the Retirement Village have regrettably been met with refusal. In the face of Ms Denham's rejections of such compromise, in circumstances where Unit 421 is required to be vacated in order for further assessment and for rectification/cleaning works to be done to resolve the mould issue, HN Asset was left with no option but to commence the proceeding in the Tribunal to recover vacant possession of Unit 421.
For all of the reasons set out above, it is reasonable, in my view, to exercise the Tribunal's statutory discretionary power to terminate the residence contract between HN Asset and Ms Denham and to require Ms Denham to vacate Unit 421 by 31 January 2025. The orders are set out above at [1].
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R PETRUCCI, MEMBER
31 DECEMBER 2024
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