Howes v Dobson Developments Pty Ltd - [2001] NSWCA 96

NEW SOUTH WALES COURT OF APPEAL

CITATION: HOWES v DOBSON DEVELOPMENTS PTY LTD [2001] NSWCA 96

FILE NUMBER(S):
40238/00

HEARING DATE(S): 4 December 2000

JUDGMENT DATE: 10/04/2001

PARTIES:
HOWES & ORS v DOBSON DEVELOPMENTS PTY LTD

JUDGMENT OF: Mason P Powell JA Giles JA

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 11728/99

LOWER COURT JUDICIAL OFFICER: Master Malpass

COUNSEL:
Appellant: J Needham/M Fraser
Respondent: G K Downes QC/ M Green

SOLICITORS:
Appellant: Legal Aid Commission
Respondent: Gregory J Halpin

CATCHWORDS:
Retirement Villages Act 1989 - Retirement Villages Act 1999 - whether Retirement Village Industry Code of Practice applied - definition of "retirement village" - definition of "administering authority" of retirement village - whether Act precludes Supreme Court’s jurisdiction - whether owner precluded from terminating licence agreements - application of new Act to retirement villages established before its commencement - Appeal allowed. ND.

LEGISLATION CITED:

DECISION:
Appeal allowed. See par 106 for orders.

JUDGMENT:

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40238/00
SC 11729/99
MASON P
POWELL JA
GILES JA
Tuesday 10 April 2001

HOWES & ORS v DOBSON DEVELOPMENTS PTY LTD

The Elim Retirement Village was administered From May 1993 by Christian Enterprises Ltd (CEL). Residents at the village would on arrival sign a licence agreement with CEL. In March 1996 CEL purported to raise licence fees to $70 per week.

In June 1999 Dobson Developments Pty Ltd (Dobson) purchased 14 units within Elim from CEL, subject to the residents’ licence agreements. On 3 June 1999 Dobson sought payment of the licence fees at the rate of $70 per week. On not receiving payment, Dobson served notice on each licensee (appellant) asserting default, and requiring them to vacate their unit. Dobson contends that these notices terminated its contracts with the appellants.

Dobson commenced proceedings in the Common Law Division seeking a declaration that the Licence Agreements had been validly determined, and orders that Defendants give vacant possession of the units and pay the arrears of licence fees calculated at $70 per week.

On 9 March 2000 Master Malpass delivered judgment on six separate questions. This is an appeal from that judgment.

Between Master Malpass’ determination and the current appeal the Retirement Villages Act 1989 (the old Act) had been repealed and the Retirement Villages Act 1999 (the new Act) had come into force.

The parties agree that Elim Village was a retirement village within the meaning of s3 of the old Act and that CEL was an administering authority in respect of the retirement village. Dobson’s primary position is that the 14 units it owns were not a retirement village within the old Act, and therefore Dobson was not an “administering authority” within s23 and the restrictions on suing for possession in the Supreme Court do not apply.

The appellants contend that either the old or new Act precludes resort to the Supreme Court. Dobson (the respondent) claims that nothing in either Act precludes the Court’s jurisdiction or offers a…

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.

Continue reading Howes v Dobson Developments Pty Ltd

Details

AGLC: Howes v Dobson Developments Pty Ltd [2001] NSWCA 96
Case: [2001] NSWCA 96
Decision Date: 10 April 2001

CaseChat Overview and Summary

The appeal concerned the application of the *Retirement Villages Act 1999* (NSW) to a retirement village established prior to its commencement. The parties were Dobson Developments Pty Ltd (the owner and operator of the retirement village) and the residents, represented by Mr Howes. The dispute centred on whether the owner was precluded from terminating licence agreements with residents under the new Act, and whether the *Retirement Village Industry Code of Practice* applied. The matter was heard in the Supreme Court of New South Wales.

The primary legal issues before the Court were: (1) whether the definition of "retirement village" in the *Retirement Villages Act 1999* encompassed the village in question, given its pre-existing status; (2) whether the owner was an "administering authority" for the purposes of the Act; (3) whether the *Retirement Village Industry Code of Practice* applied to the village; and (4) whether the *Retirement Villages Act 1999* ousted the Supreme Court's jurisdiction to hear the matter or precluded the owner from terminating the licence agreements.

The Court reasoned that the *Retirement Villages Act 1999* was intended to apply retrospectively to retirement villages established before its commencement, including the definition of "retirement village" and the application of the Code of Practice. It found that the owner, by virtue of its control and management of the village, constituted an "administering authority" under the Act. The Court further determined that the Act did not preclude the Supreme Court's jurisdiction and that the owner was not prevented from terminating the licence agreements, as the Act's provisions regarding termination were not applicable in this instance.

Ultimately, the Court allowed the appeal, finding that the *Retirement Villages Act 1999* did not prevent the owner from terminating the licence agreements.

Orders

Orders of the court

Appeal allowed. See par 106 for orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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