Howes v Dobson Developments Pty Ltd

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Between Master Malpass’ determination and the current appeal the Retirement Villages Act 1989 (the old Act) had been repealed and the Retirement Villages Act 1999 (the new Act) had come into force.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 defence in the earlier proceedings. Alternatively, the respondent claims that so much of its summons as claims payment of outstanding fees is not affected.

Held, allowing the appeal:

Dobson’s contention that it always stood outside the scope of the old Act should be rejected. Dobson is a supplier within the meaning of s4 of the Fair Trading Act. The supply of goods and services to licensees was in the course of its business as a property investor and developer. Residents are mentioned in cl4 of the Code and are consumers within s5 of the Fair Trading Act.

The plain literal meaning of “administering authority” in the old Act is satisfied by ownership of any portion of land within the village, so long as the complex as a whole meets the description of “retirement village” (as defined). There is no reason why more than one administering authority could not exist within one retirement village.

The premises owned by Dobson were not a retirement village under s3 of the old Act. This is shown by the random separation and absence of any management or coordinating function. However, the question is irrelevant. The important matter was that the Elim Village as a whole was a retirement village.

Strictly unnecessary to consider issue of whether s15 of the old Act applied.

Dobson was an administering authority of the village and was precluded by s23 of the old Act from commencing proceedings in the Supreme Court to claim possession of the defendant’ units.

The new Act extends to retirement villages established before its commencement and regardless of whether any agreement was entered into before its commencement. Victorian Stevedoring & General Contracting Co Pty Ltd & Meakes v Dignan (1931) 46 CLR 75 (referred).

ORDERS:

Appeal allowed.
Set aside the answers to separate questions 3, 4, 5 and 6 and answer those questions as follows:
3. Yes
4. Dobson was an administering authority of the Village and was precluded by s23 of the Act from commencing proceedings in the Supreme Court to claim possession of the defendants’ units.
5. Yes
6. The question should not be answered.
Dismiss the balance of the appellants’ Notice of Motion with costs, decline to entertain the appellants’ applications to amend their defences and dismiss the appellants’ applications that this court receive further evidence and answer further separate questions.
Order that the plaintiff pay the costs of the proceedings before Master Malpass.
Respondent to pay the appellants’ costs of the appeal and to have a certificate under the Suitor’s Fund Act if qualified.

*********

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

JUDGMENT

MASON P: The Elim Retirement Village was built in two stages between 1970 and 1978. The respective development approvals refer to a:
…. group housing project for the aged, comprising two single-storey blocks of six units and one single storey block of five units….
and:
…. Three (3) structures containing a total of seventeen single residential units for the housing of aged persons….
It is now common ground that the complex as a whole was and is a retirement village both in its lay sense and within the meaning of that expression according to s 3(1) of the Retirement Villages Act 1989 (the old Act). It is also common ground that it is a retirement village according to s5 of the Retirement Villages Act 1999 (the new Act). It is also agreed that the appellants are “residents” of the Village, at least within the meaning of s3 of the old Act.
The village was administered on a charitable basis by Corella Christian Homes Trust until the 1990s. In May 1993 Corella transferred its interest in the village to Christian Enterprises Limited (CEL).
When residents came to the village they would sign licence agreements with Corella Christian Homes Trust, Corella Christian Homes Ltd or CEL (BB 2-88). These licence agreements were deeds which recited the licensee’s application “to be admitted as a guest to a Unit” and agreement to be bound by the “Home Rules” as amended from time to time by the Board of Management of the Corella Christian Homes Trust. The licences were non-assignable and were terminable by the licensor for breach continuing more than thirty days. The licensor agreed “as a matter of good faith” not arbitrarily to determine the licence without first making every effort to allow the licensee to remedy any default. It was the stated intention of the parties:
… to allow this Licence Agreement to remain in subsistence until the licensee may voluntarily vacate the Unit or the death of the licensee whichever event first occurs.
The Home Rules emphasised the personal right of occupation as licensee and regulated in considerable detail the personal rights of the “guests”.
In June 1991 the proprietors of the village caused Strata Plan 39204 to be registered. The Strata Plan comprised 24 lots plus common property. In May 1993 CEL acquired the village from Corella.
In March 1996 CEL notified the residents at Elim that it was no longer in a position to attend to the day to day management of the units and that it had appointed Steadfast Homes Limited to manage those units. CEL purported to increase the licence fees for all units to $70 per week. Licensees were offered the option of selling their units at current market value less the amount of any donation paid by the resident to Corella Christian Homes Limited at the commencement of occupation, or vacating their units and receiving a refund of such donation.
On 2 May 1996 the solicitor representing the majority of the residents asserted that the Retirement Village Industry Code of Practice (the Code) was applicable to the village and that the resolution to increase the licence fees to $70 constituted a breach of Part 5 of that Code. It was also asserted that Elim Village constituted a “retirement village” for the purposes of the old Act.
Matters escalated between the residents and CEL. The residents commenced proceedings in the Equity Division, effectively asserting rights stemming from the old Act and Pt 5 of the Code. The proceedings were heard by Cowdroy AJ and judgment was delivered on 27 November 1996. The following declarations and orders were made:
1. A DECLARATION that the complex known as “Elim Village” located at 314 Willarong Road, Caringbah and 322 Willarong Road, Caringbah is currently a retirement village within the meaning of s3 of the Retirement Villages Act, 1989 and that the plaintiffs are each “residents” within the meaning of s3 of that Act;
2. A DECLARATION that the first defendant [CEL] is an administering authority within the meaning of s3 of the Retirement Villages Act, 1989 in respect of “Elim Village”.
3. A DECLARATION that the first defendant is, by its conduct, bound by each of the Licence Agreements which each of the plaintiffs entered into with Corella Christian Homes Ltd as if it had been wound up or is no longer in existence;
4. A DECLARATION that the proposal of the first defendant to increase licence fees of the plaintiffs for his or her or their occupation of the units referred to in the schedule to the summons as notified to them does not comply with the requirements of the Retirement Village Industry Code of Practice Regulation 1995;
5. AN ORDER restraining the first and second defendants from implementing the increase in licence fees to $70 per unit per week payable by each of the plaintiffs for their occupation of the units referred to in the schedule to the summons, unless and until the defendants have complied with the requirements of Pt5 of the Retirement Village Industry Code of Practice Regulation 1995;
6. I ORDER that the defendants pay the costs of the plaintiffs.
CEL appealed to this Court. The appeal proceedings were settled. Orders made by consent and without admission included orders allowing the appeal; setting aside and discharging declaration 4 and orders 5 and 6; and affirming declarations 1 to 3, noting that they related only to the facts as they were before the trial judge.
It is conceivable that a question of issue estoppel might arise between the parties in the present proceedings, given that most of the appellants were plaintiffs in the 1996 proceedings and that the respondent in the present proceedings is successor in title to CEL as regards many of the lots. This is recorded without implying any view on the matter. The point has not been addressed.
It is common ground between the parties to the present proceedings that Elim Village as a whole was a retirement village within the meaning of s3 of the old Act and that CEL was an administering authority in respect of that retirement village. It is also common ground that, by its conduct, CEL was bound by each of the Licence Agreements previously entered into between various “guests” and CEL, Corella Christian Homes Limited or Corella Christian Homes Trust.
The genesis of the present dispute was the acquisition of 14 of the units by the present respondent Dobson Developments Pty Limited (Dobson). Dobson was not the first “outsider” to purchase a unit in the strata scheme, but it purchased the majority of the units and it was its intervention that affected the present appellants and led to the proceedings of which this appeal forms part.
By a contract dated 1 June 1999 Dobson purchased from CEL Lots 1, 4, 5, 7, 11, 12, 13, 14, 16 and 17 in Strata Plan 39204, each Lot being comprised in a separate certificate of title. The purchase was subject to the rights of the various licensees. Schedule C to the contract annexed copies of the respective Licence Agreements. The vendor warranted that the licence fees had been increased to $70 per week and the purchaser acknowledged that orders had been made by Cowdroy AJ in 1996 granting an injunction restraining the implementation of the increase in the licence fees, such injunction having been set aside and discharged by the Court of Appeal on 17 February 1999.
There was an identical contract entered into between CEL’s subsidiary, STWS Pty Limited (STWS) and Dobson on 1 June 1999 referable to Lots 18, 20, 23 and 24 in the Strata Plan. The appeal record does not appear to disclose when STWS became the registered proprietor of those lots, except that it predates the Strata Plan. STWS had also become bound by licence agreements similar to those mentioned above.
Following settlement of these two contracts for sale, Dobson caused the occupant of each of the units it was acquiring to be served with a notice from the vendor authorising and directing the licensee to pay all future licence fees to Dobson. Since the residents of Elim Village who occupied pursuant to licence agreements were licensees and not tenants then it is inappropriate to speak of any formal process of attornment. Nevertheless it is clear that from and after mid 1999 the occupants of the units and Dobson conducted themselves on the basis that Dobson was bound by the respective licence agreements and that the respective licensees were entitled to enforce them according to their terms against Dobson. In the dispute that arose it was common ground that a contractual relationship existed. The parties have joined issue about:
•whether the increase of licence fees determined by CEL was binding on the licensees;
•whether Dobson was entitled by some means to take advantage of that increase; and
•the impact of the old Act upon enforcement proceedings commenced by Dobson.
Dobson became the registered proprietor of the various Lots on 1 June 1999.
On 3 June 1999 Dobson notified its licensees that it had purchased the property and it sought payment of the licence fees at the rate of $70 per week. Each licensee tendered a fee calculated at the old rate of $27 per week. The payments were rejected and the cheques were returned. The higher rate of licence fee was demanded by letters of 24 June 1999 and 2 July 1999.
Payment not having been received, the appellants were served with notices asserting that they were in default in the payment of licence fees for more than thirty days. Each notice required them to vacate their unit. Dobson contends that these notices (served on 12 July 1999) terminated the contracts between it and its several licensees with the consequence that they thereupon became trespassers.
On 21 July 1999 Dobson commenced proceedings in the Common Law Division by way of summons. The proceedings joined as defendants the occupants of units 1, 4, 5, 7, 11, 12, 13, 14, 16, 17, 18, 20, 23 and 24. The summons sought the following relief:
1.            A declaration that the Plaintiff is not the administering authority of the complex known as “Elim” located at 314 and 322 Willarong Road, Caringbah within the meaning of section 3 of the Retirement Villages Act, 1989.
2.            A declaration that the Licences between the parties in respect of the premises at “Elim” more fully described in Certificates of Title Folio Identifiers 1/SP39204, 4/SP39204, 5/SP39204, 7/SP39204, 11/SP39204, 12/SP39204, 13/SP39204, 14/SP39204, 16/SP39204, 17/SP39204, 18/SP39204, 20/SP39204, 23/SP39204, and 24/SP39204, (“the Premises”) have been validly determined.
3.            An order for possession of the Premises.
4.             An order granting leave to issue Writs of Possession enabling the Plaintiff to enforce the judgment of the Court.
5.             An order that the Defendants pay to the Plaintiff licence fees for the period from 10 June, 1999 to 12 July, 1999 at the rate of $70.00 per week per unit.
6.            An order that the Defendants pay to the Plaintiff mesne profits from and including 13 July, 1999 at the rate of $70.00 per week per unit.
7.            Costs.
8.            Such further or other order as to this Honourable Court may seem fit.
It would appear that the claims for relief have been modified slightly by the statement of claim filed on 30 September 1999. It pleads that Dobson carries on business as a property investor and developer; that it became the registered proprietor of the various Lots on about 1 June 1999; that the premises are “within and form part of the complex located between 314 and 322 Willarong Road Caringbah”; that the defendants occupy discrete units pursuant to 14 Licence Agreements covering 14 of the 24 Lots in the Strata Plan; that Dobson took its interest in the premises subject to those Licence Agreements; that the respective licensees were in breach of terms in their Licence Agreements requiring them to pay licence fees duly determined; that such determination had been made by Dobson and the fees had not been paid; that the notices of the 12 July were served; and that the defendants continued in occupation of their units failing to pay the licence fees.
The relief sought in the statement of claim was:
1.            A declaration that the Licence Agreements have been validly determined.
2.            An order that each of the Defendants give up to the Plaintiff vacant possession of the Units.
3.            Alternatively to Order 2 hereof, an order that each of the Defendants pay to the Plaintiff a licence fee as determined by this Court.
4.            An order granting leave to issue Writs of Possession enabling the Plaintiff to enforce the judgment of the Court.
5.            An order that the Defendants pay to the Plaintiff licence fees for the period from 10 June, 1999 to 12 July, 1999 at the rate of $70.00 per week per unit.
6.            Costs.
7.            Further or other orders.
The defendants filed individual defences and a composite cross-claim.
The Defences deny the validity of the $70 per week determination. Each defendant pleads (in pars 8 and 9) that the plaintiff is precluded from seeking to terminate the right of residence by virtue of s15 of the old Act and precluded from seeking to obtain recovery of possession by virtue of s23 of the old Act. There is also a defence invoking the Contracts Review Act 1980.
The Cross-Claim pleads facts in support of declarations that the licensees are “residents” of a “retirement village” within the meaning of s3 of the old Act and a declaration that Dobson is an “administering authority” within the meaning of s3 of that Act. Other declarations and injunctions are sought but it is unnecessary to address them in these reasons.
On 4 November 1999 Hulme J made orders by consent pursuant to Part 31 that six questions be determined separately and before any other issue in the proceedings.
The proceedings on the separate questions came on for hearing before Master Malpass in February 2000. Judgment was delivered on 9 March 2000 (Dobson Developments v Howes & Ors [2000] NSWSC 132).
This is an appeal from that decision (cf Supreme Court Act, s103). Leave to appeal was granted on 10 August 2000.
Retirement Villages Act 1989

The Retirement Villages Act 1989 (the old Act) is described in its long title as an act “relating to the termination of occupation rights of residence in retirement villages, and to confer on the Residential Tenancies Tribunal jurisdiction with respect to certain matters relating to retirement villages”.
It is convenient to set out certain definitions in s3, s5 and portions of Pt 3 (Rights of Residents and Administering Authorities ) (ss14 - 30).
Section 3.    Definitions
3.(1)      In this Act:
"administering authority", in relation to a retirement village , means the person by or on whose behalf the retirement village is administered and includes a person (other than a resident ) who owns land within the village;
…
"residence contract" means a contract, agreement, scheme or arrangement by which a person obtains the right to occupy residential premises in a retirement village , and may take the form of a lease or licence;
…
"resident", in relation to a retirement village , means a person who occupies residential premises in a retirement village under a residence contract, and includes a person who occupies such premises and who is or was the spouse or de facto partner of such a person;
…
"retirement village" means a complex containing residential premises (whether or not including hostel units) predominantly or exclusively occupied, or intended to be predominantly or exclusively occupied, by retired persons in pursuance of:
(a)          a residential tenancy agreement or any other lease or licence; or
(b)         a right conferred by shares; or
(c)          the ownership of residential premises subject to a right or option of repurchase or conditions restricting the subsequent disposal of the premises; or
(d)         any other scheme or arrangement prescribed for the purposes of this definition, and for the right to occupy which those persons are or will be required to pay or donate money;
…
"Tribunal" means the Residential Tribunal established by the Residential Tribunal Act 1998.
…
Section 5 Application of Act
5.            This Act applies to retirement villages, to which a code applies, established before or after the commencement of this section, and so applies despite the terms of any contract, agreement, scheme or arrangement, whether made before or after the commencement of this section.
…
Part 3 Rights of Residents and Administering Authorities
14.         Application to Tribunal relating to disputes-general
(1)         If a resident or the administering authority of a retirement village claims that:
(a)         a dispute (other than a dispute about the proposed budget for the operation of the village) has arisen between the resident and the authority or the authority and one or more residents or the resident and another resident ; and
(b)         all procedures for settlement of the dispute under any applicable code (otherwise than by reference of the dispute to the Tribunal ) have been exhausted without resolving the dispute to the satisfaction of the resident or the authority or, if there are no such procedures, the dispute has not been resolved, the resident or authority may apply to the Tribunal for an order in respect of the dispute.
(2)        The Tribunal shall not hear an application under subsection (1) (other than an application relating to a dispute arising out of the transfer or the proposed transfer of a resident of a retirement village from one kind of accommodation in the retirement village to another) unless it is of the opinion that:
(a)   the dispute materially affects a party to the dispute; or
(b)   it is in the public interest to do so.
(3)   The Tribunal may, on application by a resident or an administering authority under this section, make one or more of the following orders:
(a)   an order that:
(i)   restrains the administering authority from transferring the resident from one kind of accommodation in the retirement village to another; or
(ii) requires the resident to transfer, or the authority to transfer the resident , from one kind of accommodation in the village to another; or
(b)   an order terminating the residence contract of the resident ; or
(c)   an order that:
(i)   restrains any action in breach of any residence contract or residence rule; or
(ii) requires the performance of any residence contract or residence rule; or
(d)   an order that the resident or authority perform such work or take such other steps as the order specifies to remedy a breach of a residence contract ; or
(e)   an order for the payment of an amount of money; or
(f)   an order for compensation; or
(g)   an order that requires payment to the Tribunal of part or all of any money payable by a resident to the authority until the whole or part of any residence contract has been performed or any application for compensation has been determined; or
(h)   an order that requires payment (out of money paid to the Tribunal ) towards the cost of remedying a breach of a residence contract or towards the cost of any compensation.
(4)   An order under subsection (3) (c) may be made even though it provides a remedy in the nature of an injunction or order for specific performance in circumstances in which such a remedy would not otherwise be available.
(5)   If a resident or an administering authority of a retirement village claims that:
(a)   a residence rule is unconscionable, harsh or oppressive or contravenes any applicable code ; and
(b)   all procedures for settlement of a dispute relating to the rule under any applicable code (otherwise than by reference of the dispute to the Tribunal ) have been exhausted without resolving the dispute to the satisfaction of the resident or authority or, if there are no such procedures, the dispute has not been resolved, the resident or authority may apply to the Tribunal for an order under subsection (6) .
(6)   The Tribunal may, on application by a resident or an administering authority under subsection (5) , make an order:
(a)   setting aside the residence rule; or
(b)   modifying the operation of the rule, either in its application to the resident or to some or all of the residents of the retirement village .
(7)   If the Tribunal makes an order terminating a residence contract under this section, the Tribunal shall fix in the order a date by which the resident must vacate the residential premises .
(8)   In addition to any other order it may make under this section, the Tribunal may make an order for the payment or refund of money by an administering authority to a resident or by a resident to an administering authority .
(9)   An application under this section may be made during the currency or after the termination of a residence contract .
(10) For the purpose of determining any application under this section with respect to a dispute arising out of the transfer or proposed transfer of a resident of a retirement village from one kind of accommodation in the retirement village to another, the Tribunal may:
(a)   with the consent of the resident , request the Secretary of the Department of Health or any other person or any body to prepare a report with respect to the resident's physical or mental capacity; and
(b)   have regard to any such report and any other report prepared on behalf of the resident or the administering authority of the retirement village.
15.         Termination of right to occupy premises in retirement village
A resident of a retirement village who is entitled to occupy residential premises under a residence contract has a right of occupation that terminates only in one of the following circumstances:
(a)         when the resident dies; or
(b)         if the residence contract is terminated by the resident in accordance with the residence contract ; or
(c)if the resident abandons the residential premises; or
(d) if the residence contract is terminated by the Tribunal under this Act.
…
17.         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 administering authority of the retirement village, the authority 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 administering authority under this section, make an order terminating the residence contract , but only if it 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)   In addition to any order the Tribunal may make under subsection (2) , it may in proceedings under this section make an order:
(a)   setting aside a residence rule; or
(b)   modifying the operation of a rule, either in its application to a resident or to some or all of the residents of a retirement village, if it is of the opinion that the rule is unconscionable, harsh or oppressive or contravenes any applicable code .
(4)   The Tribunal may make an order under subsection (3) whether or not any procedures specified under any applicable code or the residence contract for giving notice of intention to terminate a residence contract or for termination of the residence contract or for the settlement of a dispute have been complied with.
(5)   If the Tribunal makes an order terminating a residence contract under this section, the Tribunal shall fix in the order a date by which the resident must vacate the residential premises occupied by the resident .
(6)   In addition to any other order it may make under this section, the Tribunal may make an order for the payment or refund of money by an administering authority to a resident or by a resident to an administering authority .
…
23.         Prohibition on certain recovery proceedings in courts etc.
No proceedings in the Supreme Court, the District Court or a Local Court to obtain recovery of possession of residential premises occupied by a resident of a retirement village under a residence contract shall be commenced by the administering authority of the retirement village against the resident .
24.   Recovery of possession of premises prohibited except by order
(1)   A person shall not, except in accordance with a judgment, warrant or order of a court or an order of the Tribunal , enter residential premises occupied by a resident of a retirement village under a residence contract for the purpose of recovering possession of the premises.
Maximum penalty: 200 penalty units.
(2)   This section applies to a person who enters residential premises , whether on his or her own behalf or on behalf of another person.
(3)   A court before which proceedings for an offence under this section are brought may (in addition to any other penalty) order the person who committed the offence or any person on whose behalf that person acted to pay to the person entitled to occupy the premises concerned such compensation as it thinks fit.
The Master’s judgment under appeal
The questions referred for separate determination and the Master’s answers to them were:
Q 1.        Whether the Premises [ie the 14 lots] are a retirement village within the meaning of section 3(1) of the Act.
A 1.        No.
Q 2.        If the answer to question 1 is “yes”, whether Dobson is the “administering authority” of the Premises for the purpose of section 23 of the Act.
A 2.        Does not apply.
Q 3.        If the answer to question 1 is “no”, whether Dobson is an “administering authority” of Elim Village for the purpose of section 23 of the Act.
A. 3        No.
Q 4.        If the answer to questions 2 and/or 3 is “yes”, whether Dobson is thereby precluded from commencing proceedings in this Court:
a)            in relation to:
i)             the Defendants’ failure to pay arrears of rent;
ii)            the recovery of possession of the Premises; and/or
iii)           the relief sought by Dobson in its statement of claim; and/or
b)           by reason of sections 15 or 23 of the Act.
A 4.        Does not apply.
Q 5.        If the answer to question 1 is “no”, does section 15 of the Act apply such that the residence contracts between the Defendants and Dobson have not each been validly terminated.
A 5.        No.
Q 6.        If the answer to questions 2 and 3 is “no”, does the Residential Tribunal nevertheless have jurisdiction to determine the issues between the parties to the present proceedings.
A 6.        Does not strictly apply, but no.
(References to “the Act” are to the old Act.)
Costs followed the event.
In his reasons, the Master recounted the history of the village and of the dispute. He recorded that a number of affidavits had been read and that the task before him was to deal with questions of statutory construction in light of the affidavit material.
The key sections of the old Act were set out. (The Master noted that the new Act had been passed, but he recorded that it was common ground that the 1999 legislation had no application to the questions raised in “these proceedings” (at [13]).)
The critical dispute between the parties was whether s15 or s23 of the old Act precluded Dobson from seeking an order for possession in the Supreme Court consequent upon the termination notices it served in July 1999. This issue turned upon whether the 14 units involved in the proceedings were (or were part of) a “retirement village” within s 3(1) and whether Dobson was the or an “administering authority”.
Before the Master, it appears that Dobson’s primary position was that the 14 units it owned (“the premises”) were not a retirement village within the old Act. This was the issue formally decided in its favour by the answer given to question 1 of the referred questions. Since those premises were not a retirement village, it followed that Dobson was not an “administering authority” within s23 and that the preclusive provisions of s15 or s23 of the old Act could not apply to the claims it was making in the Supreme Court proceedings.
The nub of the Master’s reasoning appears from the following paragraphs of his judgment:
35 The Village was established as a retirement village. It seems that at some stage it was in single ownership with a single operator. Whilst the evidence as to what has happened since is at times sketchy, at least in recent times it has undergone change. The conversion to Strata Title enabled individual ownership of units (there are now eleven individual lot owners and the common property is vested in the body corporate). There is a manager for certain purposes (the managing agent has the powers, authorities, duties and functions that may be conferred upon him by agreement). The evidence does not suggest that there is any contract or other arrangement for the administering of the village complex as a whole. Save for the administration services provided in relation to the strata scheme, there appears to be no entity (person or otherwise) administering to the Village as a whole complex. The evidence does not suggest that, at least presently, there are village rules or a disputes committee. Save as to what is done by the strata manager, the evidence does not suggest that there is now a budget as envisaged by section 14A and the Code or preparation of accounts for the Village.
36 One aspect of the definition is that there be a "complex". Whether or not the fourteen units are a complex in the relevant sense, is a principal matter in issue. What was indisputably a retirement village complex, is now land upon which stands fourteen units which are in single ownership (occupied by the defendants/cross-claimants pursuant to licence) and ten units which are individually owned together with the common property (owned by the body corporate). There are six separate buildings and the fourteen units are scattered throughout those buildings. The common property is controlled and managed independently of the plaintiff. It could be expected that there may be some communal amenities (on this matter the evidence is not helpful) and that the plaintiff would have no management role in respect of any such amenities.
37 The attention of the court has been invited to a dictionary meaning of "complex". Many meanings are ascribed to the word (including "composed of inter-connected parts"; "compound"; "composite" and "a complex whole or system").
38 In the circumstances of this case, I do not consider that the units owned by the plaintiff are a "complex" within the meaning of the definition and, accordingly, they are not a "retirement village" within the meaning of the Act. Therefore the first question is answered "no".
…
40 The statutory definition of "administering authority" is in some respects a puzzling provision. It commences with an expression that it means the person by or on whose behalf the retirement village is administered. Save for what subsequently appears in the definition, the concept of "administering" is given no further exposition. The definition concludes with an expression that "administering authority" includes a person (other than a resident) who owns land within the Village.
41 It could be described as troublesome and largely unhelpful. For a person to satisfy the definition, it needs to be demonstrated that the function of administering the Village is being performed (he is the person by or on whose behalf the retirement village is administered). The person may be an owner of land within the Village.
42 A dictionary meaning of "administer" throws up inter alia the concepts of "to manage or have charge of or to provide assistance". In the context of the legislation, a role of management seems to have been intended.
43 Part 3 could be expected to throw some light on the question. There are provisions contained therein which give the authority locus standi to apply to the Tribunal. Apart from the applications that may be made pursuant to section 14, the person can apply to it for an order terminating the residence contract and for relief where premises have been abandoned. The person is prohibited from commencing proceedings in inter alia the Supreme Court to obtain recovery of residential premises occupied by a resident. Generally speaking, that is the extent to which the statute deals with the role of the administering authority.
…
47 The defendants/cross-claimants say that there are various matters which are carried out by the plaintiff which are matters which an administering authority would carry out. These are said to include the receiving and charging of rent, supplying residents with information about their residence, paying bills (such as rates and other bills) and strata fees in relation to the unit, receiving and answering correspondence in relation to the unit and to the retirement village of which it forms part and carrying out repairs. Further, it is said that mere ownership may be sufficient and that it involves administering a unit in the sense of paying rates and performing other roles.
48 In this case, the village complex is not merely the fourteen units. There are ten other units and common property over which the plaintiff has no management role. Largely, the house rules are in the nature of licence conditions and do not contain provisions for the conduct, management and operation of the Village. The activities performed by the plaintiff fall into the category of things normally done by an owner/licensor of the fourteen units. Largely, what is done is individual to each unit.
49 The application of the definition requires a finding that the relevant person is the party who is administering the Village. Each case will turn on its own particular facts. In my view, the evidence in this case does not lead to the finding that the plaintiff is the person by or on whose behalf the retirement village is administered (whether the Village be regarded as a whole or merely as the fourteen units).
50 It follows from what has been found that, in my view, section 23 has no application to these proceedings. These are not proceedings commenced by "the administering authority".
51 The plaintiff has made the following submission:-
"Upon the true construction of s.15 of the Act, it is submitted that the `right of occupation' is a right to occupy residential premises within a retirement village when they are administered by an administering authority (or a person deemed to be an administering authority pursuant to section 5A(2)(b) where the premises are no longer part of a retirement village)."
52 Section 15 is expressed in terms of a provision which identifies the circumstances in which the right of occupation of a resident of a retirement village who is entitled to occupy residential premises may be terminated. The terms of the section make no reference to "administering authority". The defendants/cross-claimants say that the Act specifies the only four ways in which a residence contract may be terminated and that termination by the plaintiff requires the intervention of the Tribunal. At first blush, this argument has appeal. However, it seems to me that the section needs to be read in its context.
53 Section 15 is to be found in Part 3 which purports to deal with rights of residents and administering authorities. Part 3 establishes a regime intended largely to deal with matters arising between a resident and the authority and the jurisdiction thereby conferred is given to the Tribunal. The section applies to a resident of a retirement village (who is entitled to occupy residential premises under a residence contract). An element of the definitions of each of "resident", "residential premises" and "residence contract" is "a retirement village". I have already found that the plaintiff is not an "administering authority" and that the fourteen lots owned by it are not "a retirement village" in the relevant sense.
54 The section provides for the termination of the right of occupation only in one of the four stipulated circumstances.
55 When section 15 is viewed in context it can be seen as part of the regime established by the Act largely for the resolution of disputes between resident and authority before the Tribunal. It seems to me that the section has application where the termination involves a resident and the administering authority and/or the Tribunal has jurisdiction. It is a regime which recognises jurisdiction had by the courts (see inter alia sections 23, 24 and 30).
Overview of issues in appeal

The appellants’ contention, broadly speaking, is that either the old or the new Act (whichever is applicable) precludes resort to the Supreme Court, as regards the claim for possession consequent upon alleged termination of the Licence Agreements. According to the respondent termination took place on or about 12 July 1999 when the respondent served the default notices or 21 July 1999 when the summons for possession was filed.
Dobson’s principal contention is that it duly invoked the jurisdiction of the Supreme Court and that nothing in the old or the newActs precludes that Court’s jurisdiction or offers a defence to the proceedings to enforce the respective Licence Agreements by orders for possession, recovery of unpaid licence fees, and orders in the nature of mesne profits. The respondent claims in the alternative that so much of its Summons as claims payment of outstanding licence fees is not affected.
Which Act applies to the proceedings?
The Retirement Villages Act 1999 (the new Act) is described in its long title as:
An Act to set out particular rights and obligations of residents and operators of retirement villages; to establish mechanisms for the resolution of certain disputes between residents and operators of retirement villages; to repeal the Retirement Villages Act 1989 ; and for other purposes.
It received assent on 3 December 1999 and commenced operation on 1 July 2000.
Some of the matters now in dispute between the parties depend on identifying whether the old or the new Act applies to their respective rights. The scheme of each Act is similar in that rights of termination of residence contracts depend upon order of the Tribunal, and the powers of the Supreme Court are effectively displaced in favour of that of the Tribunal as regards proceedings for the recovery of possession. However, some of the key definitions are different. The concept of “administering authority” has been replaced by that of “operator”, defined to mean:
the person who manages or controls the retirement village , and includes:
(a)         a person (other than a resident or other person referred to in subsection (2)) who owns land in the village, and
(b)         any other person or class of persons prescribed by the regulations for the purposes of this definition, but does not include:
(c)          the relevant association of a community land scheme or the owners corporation of a strata scheme , or
(d)         the managing agent of such a scheme, or
(e)          any person or class of persons excluded from this definition by the regulations.
When the proceedings commenced in the Common Law Division the old Act was in force. When the separate questions were heard and determined by Master Malpass it was still the operative legislation. The new Act had received assent but it had not yet been proclaimed to commence. Master Malpass noted these matters. He also recorded that it was common ground before him that the new Act had no application to the questions raised in “these proceedings” (at [13]). This was entirely correct, given that the new Act had not yet been proclaimed to commence and there was no certainty that it ever would ever be proclaimed to commence.
However, the new Act had come into force and the old Act had been repealed by the time the appellants sought and obtained leave to appeal in relation to Master Malpass’ decision. The leave proceedings were virtually uncontested and the Court of Appeal’s attention was not drawn to the legislative changes that had transpired. The draft Notice of Appeal for which leave was granted confined itself to the old Act (Red 161).
On 24 August 2000 the appellants filed a Notice of Appeal claiming relief in the alternative under the old and the new Acts. Neither the leave of the Court nor the consent of the respondent was sought. On 17 November 2000 the respondent countered by filing a Notice of Motion seeking to have the grounds of appeal struck out and the grant of leave revoked. The appellants answered with a Notice of Motion seeking to adduce fresh evidence in the appeal, and to amend the proceedings in this Court and in the Common Law Division to take account of the new Act. On 17 November 2000 the respondent’s motion was dismissed and orders were made as sought in par 2 of the appellants’ motion, the appellants being ordered to pay the costs of each notice of motion to that date (Howes & Ors v Dobson Developments Pty Ltd [2000] NSWCA 336). The balance of the appellants’ motion stood over to the hearing of the appeal, which took place on 4 December 2000.
At times the argument moved back and forth in and out of the old Act and in and out of the new Act. The result has been a confusing plethora of issues.
Added to this is the most unfortunate bifurcation of the proceedings through the hiving off of separate issues. The repeal of the old Act is said on one of the appellants’ arguments to render irrelevant the Master’s determination of the separate questions, because the applicable legislative framework has now changed and because there is no issue estoppel on any question of present materiality. Alternatively, because the right of appeal is by way of rehearing, the appellants submit that for this reason alone they are entitled to embrace the new legislative regime (see Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at 107-8) as well as to tender evidence necessary to ensure that the new statutory regime can be applied in a factual context. I do not understand Dobson to dispute the legal principle I have stated in relation to the impact of a change of law as regards an appeal by way of rehearing. However, Dobson contends that (even if the new Act is now the operative legislation) it does not affect Dobson’s accrued rights; alternatively, that the new Act’s transitional provisions send the parties back to the old Act for the determination of their rights in relation to the issues joined in the pending Supreme Court proceedings.
The issues in context
In my view, it is essential to bear in mind that the whole purpose of the hearing before the Master was to determine the effectiveness of the defences pleaded by the residents in pars 8 and 9 of their Defences invoking ss15 and 23 of the oldAct. These are jurisdictional defences whose validity the Supreme Court has jurisdiction to determine (see Whiteford v Commonwealth (1995) 38 NSWLR 100).
The legal and factual issues addressed by the Master were effectively confined to the scope of those two sections of the old Act and their application to the dispute between the parties. As to s23, the issue was whether Dobson was an “administering authority of the retirement village”. As to s15, the primary issue was whether that section precluded Dobson absolutely from seeking to terminate the residents’ right to occupy their units without resorting to the Residential Tribunal. The secondary issue was whether Dobson was such a body if s15 implicitly confined itself to an attempt by the administering authority of a retirement village to obtain occupation of premises in that village.
It was common ground before the Master that neither s15 nor s23 of the old Act precluded so much of Dobson’s prayers for relief as sought recovery of outstanding licence fees (see Master’s judgment at [56]). While this meant that the Supreme Court had jurisdiction to determine the underlying dispute as to the increase in the licence fees, it suited each party to stand their ground and fight on the issue of the Supreme Court’s power to entertain the claims for relief based on termination and recovery of possession. For its part, Dobson had reason to doubt whether any other body had jurisdiction to entertain such claims and it obviously wanted to keep its hand on the most threatening of the potential remedies in its arsenal. As far as the residents were concerned, they were content to allow bifurcation and attendant delay. For their part they were purporting to hold in reserve until necessary their right to seek a stay of whatever remained of the Supreme Court proceedings.
The residents had in mind the pendency of related proceedings. On 28 June 1999 proceedings had been commenced in the Fair Trading Tribunal by the residents, acting pursuant to s78A of the Fair Trading Act. The defendant in those proceedings was CEL. The residents alleged breaches of the old Act and Code and were seeking to overturn CEL’s determination to increase the licence fees. These proceedings presently stand over generally. It is not clear how their pendency may be used as the basis for seeking a stay of Supreme Court proceedings instituted by Dobson. Since however Dobson is CEL’s successor in title then it may be that the residents have in mind amending those proceedings before promoting them as the primary vehicle for addressing the real issue - if and when it ever becomes necessary to do so. (In recording these matters I must not be taken to indicate any view as to whether the residents were justified in deferring any foreshadowed stay application.)
Dobson’s contention that the 1989 Act never applied to the village
Dobson submits that the old Act did not apply to the village as a whole, and for that reason alone the jurisdictional defences based on ss15 and 23 of the old Act did not arise for determination. The point was taken before the Master, but he found it unnecessary to address it (Judgment at [34]). Dobson invokes the point afresh by notice of contention.
The submission is that s5 of the old Act restricted its application to retirement villages “to which a code applies”. This section is set out above. The old Act did not provide for the making of codes, but s3(1) thereof defined “code” to mean any code of practice prescribed under the Fair Trading Act 1987 which relates to retirement villages. Part 7 of the lastmentioned Act sets out the procedure for preparing and issuing codes of practice for fair dealing affecting “consumers” (a term defined in s5 of that Act). The relevant Code is a schedule to the Retirement Village Code of Practice Regulation 1995. The Code and its effect is discussed in Murphy & Ors v Overton Investments Pty Ltd & Anor (Court of Appeal, unreported, 3 September 1998) (Overton).
The Code set out good practices for fair dealing in the promotion, sale and operation of retirement villages. It was expressed to be complementary to the Retirement Villages Act 1989 (cl 1(1)). Clause 4 stipulated that the Code’s provisions apply to all suppliers and consumers involved in the retirement village industry, including promoters, developers, those who sell property or interests, management and residents. The Code applied to existing as well as new retirement villages. (The Code was repealed and replaced by a Code promulgated in 1995.)
However, Dobson submits that the Code never extended to Elim Retirement Village, with the consequence that neither did the old Act (in view of s5). It is submitted that the Code must be read down so that its effect is merely to govern dealings between the classes specified in s74(1)(a) and (b) of the Fair Trading Act, ie:
(a)between a particular class of suppliers and consumers, or
(b) by a particular class of persons in relation to consumers.
Section 74 is the source of the power of the Director-General of the Department of Fair Trading to prepare a draft code of practice for consideration by the Minister.
In Overton this Court held that the legal effect of the Code was to provide a basis for the imposition of restrictions and to give effect to residents’ rights under the Code, but to do so only by way of undertakings or orders as provided for in the Fair Trading Act (ss76-79). Until that occurred, residents’ contracts were entitled to be enforced according to their terms, subject of course to the application of the old or new Retirement Villages Act.
Dobson accepts that Overton establishes the limited extent to which the Code had binding effect. But Dobson raises a matter that was not in dispute in Overton, namely whether the Code and therefore the old Act applied to the particular village (cf p5 of the judgment of Fitzgerald AJA in Overton). Dobson submits that the Code did not and does not apply to Elim Retirement Village, or at least to the units in the village it now owns.
Senior counsel for Dobson made it plain during argument (Tr p51) that the effect of this submission was that the Code was either ultra vires the power found in the Fair Trading Act to promulgate it, or that it had to be read down to bring it within power. Either way, it thereby missed Dobson as an intended mark. It was submitted that to the extent to which the Code purported to apply to persons who were not “suppliers” or “consumers” in the retirement village industry, the Code simply did not (validly) apply (Tr p58).
A necessary part of this submission is that Dobson was not a “supplier” as defined in s4 of the Fair Trading Act (Tr pp58-61), ie “a person who, in the course of a business, supplies goods or services”. “Goods” and “services” are there defined. Herein lies the fallacy of the argument, because Dobson is undoubtedly such a supplier. Its role as licensor is not so supine that no goods or services are supplied to its licensees. The fact that it carried on a business as a property investor and developer is asserted in its own statement of claim. The supply of goods and services to licensees were in the course of that business.
There are other problems with the contention that Dobson always stood outside the scope of the old Act. The words “to which a code applies” in s5 of the old Act had work to do (even on the strained logic of Dobson’s argument) so long as the Code applied, or perhaps even was capable of applying, to any of the categories of person stipulated in cl 4 of the Code. Residents are mentioned expressly in cl 4 and they are consumers within s5 of the Fair Trading Act.
The contention point should be rejected.
Was Dobson “the administering authority of the retirement village” for the purpose of s23 of the old Act?
Section 23 of the old Act provided:
23. Prohibition on certain recovery proceedings in courts etc.
No proceedings in the Supreme Court, the District Court or a Local Court to obtain recovery of possession of residential premises occupied by a resident of a retirement village under a residence contract shall be commenced by the administering authority of the retirement village against the resident .
In his answer to question 3, the Master held that Dobson was not an “administering authority” for the purpose of s23. His reasons (at [40]-[50]) are based on the conclusion that Dobson’s role was merely that of owner/licensor of its 14 units. It had assumed no wider function of administration with respect to the village as a whole, or even in relation to its 14 units (cf [49]). On appeal, Dobson supports this reasoning. It points out that the grounds and buildings of the village, taken as a whole, are owned by the owners’ corporation under the strata scheme, that corporation in turn being managed by a duly appointed managing agent. Dobson is not the only owner of lots in the Strata Plan and the lots owned by it are spread randomly through the village. Dobson does not “administer” the entirety of the village, nor does it have the right to do so. Its essential role is no more than that of a landlord which from time to time is called upon to attend to the individual needs of licensees. Dobson submits that, if it is to be held to be “the administering authority”, then so too would the owner of a single lot - even if that lot was occupied by someone other than a retiree.
It is fairly clear that the old Act was drafted with a particular conception of a retirement village in mind: a complex of residential units owned and administered by a single (charitable) body in circumstances where each licensee was a retiree and each unit connected structurally and relationally with the complex as a whole.
I do not think the appellants dispute that this was the ideal conception of a retirement village at the time the old Act was passed. But they point to the protective nature of the legislative scheme. Why, they ask, should conversion to strata title be critical? And why should it matter that (say) a single unit passes to a commercial owner or becomes occupied by a non-retiree? Why, they ask, should the beneficial scheme of the oldAct with all its protections against oppressive conduct be capable of being undermined by the unilateral withdrawal of “administration” by the owner/operator of the entire complex, a fortiori by the owner of a single unit in that complex?
In my view these are telling points. At the very least they direct attention back to the terms of the legislation, freed of assumptions a priori about the type of situation for which it was primarily designed.
The definition of “administering authority” in s3(1) of the old Act included:
“… a person (other than a resident) who owns land within the village”.
I agree with the appellants’ submission that these words ensure that unilateral withdrawal of “administration” does not itself affect the status of the person or body who was previously the “administering authority”. I also accept their submission that the words quoted are sufficient to deem any person or persons who (not being a resident) own any land within the village to be an “administering authority”. That is the plain literal meaning. So long as the complex as a whole satisfies the description of being a “retirement village” (as defined), then ownership of (any portion of) land within that village satisfies the definition. “Land” is not defined in the old Act, but s21(1) of the Interpretation Act 1987 defines it to include any estate or interest in land.
On this reasoning it is irrelevant that the 14 Dobson units may not be a “complex” in their own right, with their own set of “village rules” or “disputes committee” (cf Master’s judgment at [35]-[38]).
Any other result would do less than justice to the plain words, especially the words “within the village”. This interpretation also serves the beneficial purpose of the old Act, because it prevents the withdrawal of the legislative protection that, on Dobson’s interpretation, would occur if a single owner of the entire village deliberately dropped its administration bundle and/or effected a subdivision of the village, transferring one or more lots to a third party. I see nothing in the definition that would rebut the presumption that the singular may include the plural (cf Interpretation Act 1987, s8(b)), and for that reason I reject Dobson’s submission that the words “a person … who owns land within the village” are to be read as if only one person could qualify, thereby bolstering Dobson’s contention that the words are confined to persons owning the whole of the land in the complex.
Dobson submits that the latter part of the definition (commencing with the words “and includes”) is to be read as a type of restrictive proviso and not a free-standing extension. As a proviso, it is stating that “the person by or on whose behalf the retirement village is administered” does not cease to be such if that person owns land within the village. I do not read the definition in this way.
I see no reason why more than one administering authority could not be capable of enjoying the benefits and burdens conferred by the oldAct, for example with respect to disputes (s14(1)), termination of residence contracts (s14(3)(b)), enforcement of the performance of residence rules or contracts (s14(3)(b),(c)), disputes about a proposed budget (s14A), recovery of possession in the Tribunal (s23), and obtaining orders for compensation in various circumstances (ss26, 27, 28). Naturally, a particular administering authority’s standing in the particular dispute would need to be demonstrated. Any remedy would have to be structured having regard to whether the party in Dobson’s position had the capacity to enforce the particular residence contract(s) involved or, conversely, was an “administering authority” with respect to the unit(s) involved in the particular dispute.

So long as a group of residential units satisfied the definition of “retirement village”, then it seems entirely appropriate that the benefits and burdens of the old Act should have applied in relation to each and every owner of land within that village. Ownership confers the right to control, and this strikes me as a sufficient reason why the benefits and burdens of the legislative scheme were intended and expressed to be imposed upon each and every owner. That is not to say that development or usage over time may not mean that the complex as a whole ceases to be a retirement village, or that a discrete part of it ceases to be part of the retirement village. But that is not the matter presently at hand.
A person acquiring ownership of all or any part of a retirement village has the capacity to look out for his or her own interests before purchase. It strikes me as intolerable that some or all residents of a retirement village would lose their statutory protection merely because an outside owner acquired ownership of their unit(s) and chose not to “administer” all or any part of the village after acquisition.
It must not be overlooked that the critical question is whether s23 of the old Act applied in the circumstances. That section precluded the commencement of recovery proceedings by “the administering authority of the retirement village” by offering a defence similar to that discussed in Whiteford v Commonwealth (1995) 38 NSWLR 100. In my view the words quoted do not mean that there can be only one administering authority for a single retirement village, even in the context of s23. Once again the presumption that the singular includes the plural has work to do in relation to the words “the administering authority”, just as a similar expansive approach should be taken in relation to “the resident”. This interpretation of s23 is reinforced by the definition of “administering authority” which, for reasons already given, clearly contemplates that there may be more than one administering authority in a single village.
This approach to s23 is strengthened when it is recognised s23 would be a paltry protection if it could be side-stepped by the simple expedient of splitting a village into two and transferring ownership (or even just management) of half to a third party.
In my view question 3 should have been answered “yes”.
Were the premises a retirement village under s3 of the old Act?
In his answer to question 1, the Master held that they were not. The nub of his reasoning was that Dobson’s 14 units were not a “complex”. He approached the matter on the basis of applying the statutory definition of “retirement village” to the 14 Dobson units taken as a separate group.
In light of the random separation of the various Dobson units and the absence of any management or coordinating function assumed by Dobson with regard to them, I do not disagree with that conclusion. I would add however that the answer has no relevance. The framer posed the wrong question, in my respectful view. Based on my interpretation of “administering authority” (above) it was irrelevant that the 14 Dobson units, taken alone, could not be described as a “retirement village” within the statutory definition. The important and sufficient matter was that the village as a whole satisfied the definition. It was and remains common ground that Elim Village as a whole was a retirement village at the time of the proceedings in the Court below (notwithstanding the strata scheme).
Accordingly, the answer was correct but irrelevant when given.
Did s15 of the old Act apply in relation to Dobson’s claim for possession in the Supreme Court?
The fourth and fifth questions attempted to raise the issue whether s15 of the old Act applied, albeit that the questions were framed by reference to the irrelevant issue whether the 14 Dobson units were a complex in their own right. If s15 did apply, subsection (d) protected the residents from termination by Dobson issuing a notice or commencing proceedings in the Supreme Court.
The Master effectively read down s15 having regard to its context. It was part of a wider regime established by the old Act. Despite its literal terms, s15 only barred resort to the Supreme Court by a licensor for relief based on its termination of a residence contract if the dispute was one between an “administering authority” and a “resident” of a “retirement village”. Since, however Dobson was held not to be an “administering authority”, s15(d) did not stand in its way (esp at [55]).
As indicated already, I consider that the Master was in error in concluding that Dobson was not an administering authority or that the protective embrace of Part 3 could be escaped in the manner contended for by Dobson. It is therefore strictly unnecessary to consider the s15 issue, but it has been fully argued before us.
As to the scope of s15 I agree with the Master’s decision and generally with his reasons.
The appellants had invoked s15(d) of the old Act, asserting that it alone addressed the question of termination of a residence contract, and that it did so by requiring that such termination be effected by the Tribunal under and in accordance with the procedures and protections stipulated elsewhere in the old Act.
An extreme branch of the appellants’ argument contends that it mattered not that the person seeking to terminate the residence contract (Dobson) may not have been an administering authority and therefore was unable to point to any provision in the old Act giving it a right “under this Act” to approach the Tribunal for an order terminating the residence contract.
Like the Master (at [51]-[55]) I would reject this extreme submission, which effectively divorces s15 from its context and deprives a person such as Dobson of contractual rights as well as the right of access to the Supreme Court without explanation, compensation or countervailing rights under the old Act.
As its heading indicated, Pt 3 of the old Act (ss14 - 30) addressed the “rights of residents and administering authorities”. These two categories of persons (defined in s3) were given rights to seek orders from the Tribunal relating to disputes (s14) regarding termination of occupation on medical grounds (s16) termination on grounds of breach of residence contract or rules (s17) and termination based upon hardship (s21). These were the main substantive rights and the other provisions were ancillary to them.
In my view s15 was clearly correlative to this scheme, despite the absence of expressed terms limiting its operation to disputes between residents and administering authorities. It would be quite unjust if no rights were given “under this Act” (cf s15(d)) to a person claiming the right to terminate a residence contract, yet such a person were stripped of all such rights otherwise stemming from a contract. The language of s15, read in context, did not require this.
So construed, s15(d) was a further bar to Dobson relying upon its notice of termination or commencement of proceedings in the Supreme Court as terminating the licence agreements. Even if the residents were in breach of contract, s15(d) and Part 3 as a whole required Dobson to obtain an order from the Tribunal to effect a valid termination.

Question 4 should be answered:
Dobson was an administering authority of the Village and was precluded by s23 of the Act from commencing proceedings in the Supreme Court to claim possession of the defendants’ units.

Question 5 should be answered “Yes”.
Impact of repeal of the Retirement Villages Act 1989

As indicated previously, the old Act was repealed on the commencement of the new Act. The operative date was 1 July 2000, ie after the date of the Master’s decision under appeal. Nevertheless a right of appeal lay, by leave of the Court of Appeal (Supreme Court Act, s103), and such appeal is by way of rehearing (ibid ss75A(5)). One consequence is that this Court is required to determine substantive rights in accordance with the law applying at the date when the appeal is heard (Dignan’s Case).
If the old Act has been entirely swept away in its continuing application to the dispute, it would follow that the Master’s answers have ceased to have any legal relevance. That is because they are framed by reference to sections which ex hypothesi have ceased to have any application to the rights of the parties. It would matter not that the principles of issue estoppel would apply (subject to appeal rights). The residents would be left bearing the costs of a separate determination which they ought to have won, but not otherwise prejudiced.
To date the residents have not amended their defences in the substantive proceedings so as to invoke the rights said to stem from the passing of the new Act. They have however sought from this Court leave to do so, primarily as the basis of sidestepping the Master’s adverse decision on what they now assert are irrelevant questions wrongly decided.
Dobson submits that it does not matter whether the new Act is invoked in the resolution of the dispute between the parties. That is because of the transitional provision of Schedule 4, clause 8 of the new Act which provides:
8 Termination of right of occupation
Any proceedings to terminate the right of occupation of a resident of a retirement village that were instituted under the former Act and not determined before the repeal of that Act are to be determined as if this Act had not been enacted.
I would reject this argument. Schedule 4 of the new Act contains savings, transitional and other provisions relating to the impact of the repeal of the old Act by the new Act. In this context, clause 8 does not have the broad sweep contended for by Dobson. It is directed at proceedings to terminate the right of occupation of a resident of a retirement village “that were instituted under the former Act”. This is a reference to proceedings in the Residential Tenancies Tribunal instituted under and in accordance with Part 3 of the old Act. The substantive proceedings pending in the Supreme Court cannot be thus characterised. Indeed, the whole thrust of Dobson’s argument on the separate issues is that it is entitled to stand right outside the scheme of the old Act.
Alternatively, Dobson invokes the well-established principle that vested substantive rights are not affected by a change in the law without the clearest statement of legislative intent. Here the residence contracts were purportedly determined by notice during the era of the old Act. And it was during that era that Dobson invoked the common law jurisdiction of the Supreme Court.
The difficulty with this submission is that the terms of the old Act precluded Dobson’s purported termination from taking effect. Section 15(d) and s23 in combination kept the residence contracts alive pending termination by the Tribunal on the ground of breach in accordance with s17. Such termination was neither sought nor granted during the currency of the old Act. One then turns to Schedule 4, clauses 2 and 3 of the new Act. Clause 2 defines “existing contract” to include a residence contract under the old Act. Clause 3(1) provides that an existing contract in respect of a retirement village within the meaning of the new Act that is in force on the commencement of that clause is taken to be a residence contract, ie for the purposes of the new Act. By this means, the protective mantle of the new Act descends upon the Village and its residents, according to the terms of the new Act. Those terms are broadly similar to those of the old Act in that ss15 and 23 of the old Act have counterparts in ss129(2) and 138 of the new Act.
I have not overlooked that Dobson raises a construction issue relating to the definition of “operator” under the new Act, but that can be addressed when and if the appellants plead appropriate defences based upon ss129(2) and 138 of the new Act, as they have foreshadowed. What I have written thus far is, however, sufficient to repel Dobson’s broad submission that it had an accrued right based upon termination occurring prior to the commencement of the new Act.
Section 11 of the new Act deals with the general application of the new Act. It provides:
…
Part 2 Application of Act
11          Application of Act
(1)         This Act applies to all retirement villages (whether established before or after the commencement of this section) and so applies despite the terms of any contract, agreement, scheme or arrangement (whether made or entered into before or after the commencement of this section).
(2)        This Act extends to apply to and in respect of:
(a)         a retired person who continues to occupy residential premises in a former retirement village that was a retirement village when the retired person took up residence in the premises, and
(b)         a retired person who has a right to occupy residential premises in a former retirement village that was a retirement village when the right was obtained, and
(c)          a former resident of a former retirement village who continues to have rights or liabilities under the contract, agreement or arrangement under which he or she occupied (or had the right to occupy) the residential premises in the former retirement village when it was a retirement village , and
(d)         the person who is the other party to the contract, agreement or arrangement under which the retired person occupies or occupied (or has or had the right to occupy) the residential premises in the former retirement village, even though the former retirement village is no longer a retirement village .
(3)         However, this Act does not so apply in respect of any place or part of a place referred to in section 5 (3) .
(4)         The regulations may prescribe other modifications to the application of this Act for the purposes of this section.
(5)         For the purposes of this Act:
(a)         a reference in this Act to a resident of a retirement village includes a reference to a person described in subsection (2) (a) , (b) or (c) , and
(b)         a reference in this Act to the operator of a retirement village includes a reference to the person referred to in subsection (2) (d) .
(6)         In this section, "former retirement village" means a complex that was previously, but is no longer, a retirement village within the meaning of this Act (even if it ceased to be such a retirement village before the commencement of this Act).
…
I do not think that s11(1) could be clearer in its expressed intent that the new Act extends to retirement villages established before its commencement and regardless of whether any agreement such as a licence agreement was entered into before its commencement. The fact that a disputed issue as to termination of such an agreement arose before the commencement of the new Act does not affect this situation so long as the contract was not terminated under the old Act and is deemed to be a residence contract under the new Act. If a termination dispute had progressed to proceedings before the Tribunal instituted under the old Act, then Schedule 4 clause 8 (discussed above) would have remitted the parties back to the framework of the old Act, but that did not happen in this case.
Disposition of this appeal
There could not be a clearer case of the problems that can arise if proceedings are bifurcated by the hiving off of separate issues.
I am prepared to grant that there is a serious dispute between the parties about the extent to which Dobson is entitled to recoup its outgoings at a rate higher than that which was struck many years ago by its predecessor in title. That dispute ought to be brought to a resolution without further delay in the interests of all parties and of the administration of justice.
I frankly do not see why this Court should give judicial advice about the detailed application of the new Act to the rights of the parties (which may turn upon the definitions of “operator”, “residence right” and “village contract” in the new Act) when no defence has yet been filed by the residents invoking jurisdictional and other rights conferred by the new Act. I am not convinced that Dobson will persist in its argument that the Supreme Court has power to terminate the licences or issue orders for possession against the residents. The Equity Division is the proper place to take further steps designed to resolve the real issues in the dispute in a “just, quick and cheap” manner (cf Supreme Court Rules, Pt 1 r3). If and when amended defences are filed then it will be open to the Supreme Court to give appropriate directions designed to bring this halting litigation to the barrier. Accordingly, question 6 should not be answered.
Hopefully there will be no further ordering of separate issues. If the residents are not prepared to press their application for a stay based on the pendency of the proceedings in the Fair Trading Tribunal, then I can see little point in hiving off separate issues relating to jurisdictional defences based on the provisions of the new Act that correspond (in part) to ss15 and 23 of the old Act. It would appear that the contractual part of the existing proceedings is adequate to resolve the ultimate issue, namely the licensor’s right to increase licence fees.
The fight over termination rights and the proper venue for declaring and enforcing them strikes me as a costly diversion with little prospect of achieving anything beyond generation of further legal fees, anxiety and frustration. There is an air of unreality about the passage of arms between the parties concerning the attempt by Dobson to evict the licensees. Its right to do so depends upon the prior resolution of the contractual dispute. Only when the substantive issues have been determined will it become necessary to consider the extreme remedy of eviction for breach. That will be so whether the termination proceedings are pressed in the Supreme Court, where questions of relief against forfeiture would doubtless arise; or in the Residential Tenancies Tribunal, subject to the protective regime of the new Act.
I propose the following orders:
1.Appeal allowed.
2.Set aside the answers to separate questions 3, 4, 5 and 6 and answer those questions as follows:
3.Yes
4.Dobson was an administering authority of the Village and was precluded by s23 of the Act from commencing proceedings in the Supreme Court to claim possession of the defendants’ units.
5. Yes
6. The question should not be answered.
3.Dismiss the balance of the appellants’ Notice of Motion with costs, decline to entertain the appellants’ applications to amend their defences and dismiss the appellants’ applications that this Court receive further evidence and answer further separate questions.
4.Order that the plaintiff pay the costs of the proceedings before Master Malpass.
5.Respondent to pay appellants’ costs of the appeal and to have a certificate under the Suitors’ Fund Act if qualified.
POWELL JA: I have read, in draft, the Judgments which have been prepared by Mason P and Giles JA.
In the light of their Honours' conclusions, with which conclusions I agree:
a.that, taken as a whole, the Elim Village was a retirement village to which a code applied;
b.that, as the Dobson units were located within the Elim Village, s.15 operated so as to preclude Dobson from terminating the licence agreements;
c.that, although the Dobson units did not constitute a complex, and, thus, did not themselves constitute a retirement village, the facts that they were located within the Elim Village, and that they were owned by Dobson, meant that Dobson was an administering authority of the Village;
d.that, Dobson being an administering authority, s,23 precluded it from commencing recovery proceedings in the Supreme Court;
lead inevitably to the conclusion that, contrary to the declaration sought in Dobson's Summons, and to what was asserted in its Statement of Claim, the residence contracts had not been terminated prior to the commencement of the proceedings, and, further, that even if they had, Dobson was precluded from commencing recovery proceedings in the Supreme Court.

The position thus is that, insofar as it sought to recover possession, neither at the time when the proceedings were commenced, nor at the time of the hearing before the Master, did Dobson have an accrued cause of action (see, for example, Wigan v. Edwards (1973) 47 ALJR 586; Baldry v. Jackson [1976] 2 NSWLR 416); and, even if it had had such a cause of action, s.23 provided by residents with a defence to it (Whitford v. Commonwealth of Australia (1995)39 NSWLR 100).
Further, the position is that, even now, the residence contracts cannot be terminated except by order of the Tribunal, and that no proceedings for the recovery of possession may be brought in the Supreme Court even if the residence contracts be terminated.
I agree that the preliminary questions should be answered in the manner proposed by Mason P and Giles JA as also do I agree with the orders proposed by their Honours.
GILES JA: This is an appeal by leave from the decision of separate questions ordered pursuant to Pt 31 r 2 of the Rules. Almost certainly unwisely, the parties chose to present by the questions part only of their proceedings. We must resist the temptation to go beyond the questions chosen by the parties, and should only answer the questions and answer them only so far as answers are of relevance in the proceedings. It might be desirable for firm first instance control to be exercised in the future over the resolution of the disputes embodied in the proceedings, but any wider endeavours at an appellate level would trespass on the parties’ chosen conduct of the proceedings and on the role of the Court at first instance.
The separate questions
The questions presented for decision were -
“1.Whether the Premises are a retirement village within the meaning of section 3(1) of the Act.
2.If the answer to question 1 is ‘yes’, whether Dobson is the ‘administering authority’ of the Premises for the purpose of section 23 of the Act.
3.If the answer to question 1 is ‘no’, whether Dobson is an ‘administering authority’ of Elim Village for the purpose of s 23 of the Act.
4.If the answers to questions 2 and/or 3 is ‘yes’, whether Dobson is thereby precluded from commencing proceedings in this Court:
a)           in relation to:
i)            the Defendants’ to pay arrears of rent;
ii)the recover of possession of the Premises; and/or
iii)the relief sought by Dobson in its statement of claim; and/or
b)           by reasons of sections 15 or 23 of the Act.
5.If the answer to question 1 is ‘no’, does section 15 of the Act apply such that the residence contracts between the Defendants and Dobson have not each been validly terminated.
6.If the answer to questions 2 and 3 is ‘no’ does the Residential Tribunal nevertheless have jurisdiction to determine the issue between the parties to the present proceedings.”
The Premises are lots 1, 4, 5, 7, 11, 12, 13, 14, 16, 17, 18, 20, 23 and 24 in Strata Plan 39204. They were fourteen of the twenty four lots in the Strata Plan, and the respondent Dobson was their owner. The lots were scattered through the six buildings comprising the Elim Retirement Village (“the Village”), each being a unit in the Village. The other units in the Village were owned by a variety of persons and companies.
Any communal amenities served the Village as a whole. Save for the usual administration of the strata scheme, no one provided communal administration of the Village. No one provided communal administration of the fourteen units as distinct from the Village as a whole.
There came into existence licence agreements between Dobson and the appellants occupants of the fourteen lots, being the contracts referred to as residence contracts in the questions, under which the occupants were entitled to occupy the units on payment of licence fees. Dobson contended that the licence fee was $70 per week, and demanded payment accordingly. When the occupants did not pay, it purported to terminate the licences and required that the occupants vacate their units.
In the proceedings Dobson claimed from the occupants, so far as presently relevant, a declaration that the licence agreements had been terminated and an order for possession of their units. The occupants’ defences to the claims included that Dobson’s purported termination of the licences was invalid and that in any event Dobson was not entitled to claim possessory relief in the proceedings.
These elements of the occupants’ defence were paras 8 and 9 of the occupants’ defences as filed -
“8.Further, and in relation to the whole of the Statement of Claim, the Plaintiff is precluded from seeking to terminate the right of residence of the [First etc] Defendant by virtue of s 15 of the Retirement Villages Act 1989.
Particulars
(a)The [First etc] Defendant seeks to rely upon the matters pleaded and the orders sought in the Cross Claim herein.
9.Further, and in relation to the whole of the Statement of Claim, the Plaintiff is precluded from seeking to obtain recovery of possession of the premises occupied by the First Defendant by virtue of s 23 of the Retirement Villages Act 1989.”
It is not necessary to go into the matters pleaded and orders sought in the cross-claim.
The provisions of the Retirement Villages Act 1989 (“the old Act”) on which the occupants relied, ss 15 and 23, read -
“15.       A resident of a retirement village who is entitled to occupy residential premises under a residence contract has a right of occupation that terminates only in one of the following circumstances:
(a)         when the resident dies; or
(b)if the residence contract is terminated by the resident in accordance with the residence contract; or
(c)if the resident abandons the residential premises; or
(d)if the residence contract is terminated by the Tribunal under this Act.”
“23.       No proceedings in the Supreme Court, the District Court or a Local Court to obtain recovery of possession of residential premises occupied by a resident of a retirement village under a residence contract shall be commenced by the administering authority of the retirement village against the resident.”
Other provisions empowered the Residential Tribunal, being the Tribunal to which s 15 referred, to make an order terminating a residence contract and an order that a resident vacate residential premises, and set out the grounds on which it might do so (ss 14, 16, 17, 20, 21). In short, the occupants contended that Dobson could only have terminated the licence agreements by successful application to the Tribunal and that only the Tribunal could grant it possessory relief.
Sections 15 and 23 involve the concepts of (i) resident; (ii) retirement village; (iii) residential premises; (iv) residence contract; and (v) administering authority.
It was not disputed that the Village was a retirement village; that the occupants were residents of the Village; that their units were residential premises; and that the licence agreements were residence contracts. The relevant disputes were over whether the Premises were a retirement village, although if the Premises were a retirement village it was not disputed that the occupants were its residents; and whether Dobson was the administering authority of either the Village or the Premises, as the case may be.
The intent in the framing of the questions can be discerned, although their framing is not ideal. The issues raised, in more logical order, were as follows -
1.            Whether the Premises a retirement village (Question 1).
2.            If the Premises were a retirement village -
(i)Whether s 15 operated so that the licence agreements had not been validly terminated (Question 4 in part); and
(ii)Whether Dobson was the administering authority of the Premises (Question 2) and if so whether Dobson was precluded by s 23 from commencing proceedings so far as it claimed possession (Question 4 in part).
3.            If the Premises were not a retirement village -
(i)Whether s 15 nonetheless operated so that the licence agreements had not been validly terminated (Question 5);
(ii)Whether Dobson was an administering authority of the Village (Question 3) and if so whether Dobson was precluded by s 23 from commencing the proceedings so far as it claimed possession (Question 4 in part); and
(iii)Even if Dobson was not an administering authority of either the Premises or the Village, whether the Tribunal nonetheless had “jurisdiction to determine the issues between the parties to the present proceedings” (Question 6).
It appears to have been intended to throw up for decision a number of paths to defeat for Dobson’s claim to possession of the occupants’ units, namely -
(a)          issue 1 yes, issue 2(i) yes;
(b)          issue 1 yes, issue 2(ii) yes and yes
(c)          issue 1 no, issue 3(i) yes;
(d)          issue 1 no, issue 3(ii) yes and yes.
Issue 3(iii) lies outside this analysis , and I will refer to it shortly.
It is not entirely clear that issue 2(i) was raised by the all but incomprehensible question 4, but the reference to s 15 of the old Act is not otherwise explicable. In stating the issues I have not referred to commencement of proceedings in the Supreme Court in relation to arrears of licence fees, or to relief sought in the statement of claim, two matters referred to in question 4. If it was intended in question 4 to raise recovery of arrears of licence fees, neither s 15 nor s 23 says anything about that. If failure to pay licence fees was seen only as the basis for termination of the licence agreements and recovery of possession, nothing was added to the question. There were therefore no relevant additional issues raised by question 4.
Issue 3(iii) arising under question 6 is irrelevant to the proceedings, because if the Supreme Court has jurisdiction it does not matter for Dobson’s claims that the Tribunal may also have jurisdiction. There is no application for a stay of the proceedings founded on the Tribunal having jurisdiction.
At the outset, therefore, question 6 should not be answered, and question 4 should only be answered so far as relevant to commencement of the proceedings claiming possession of the occupants’ units.
The repeal of the old Act
An initial matter arises in the appeal. All the questions to be answered involve the effect of the old Act. The old Act was repealed and replaced by the Retirement Villages Act 1999 (“the new Act”) with effect from 1 July 2000. The decision of the questions now on appeal was given on 9 March 2000, when the old Act was still in force. The appeal was heard on 4 December 2000, when the new Act was in force. The hearing on appeal is a rehearing (Supreme Court Act s 75A(5)), to be disposed of on the law as it is at the time of the appeal (Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73). Does this mean that the operation of ss 15 and 23 of the old Act is now of no significance in the proceedings, so that none of the questions should be answered on appeal?
The only possibly relevant transitional provision in the new Act is cl 8 in Sch 4, providing -
“Any proceedings to terminate the right of occupation of a resident of a retirement village that were instituted under the former Act and not determined before the repeal of that Act are to be determined as if this Act had not been enacted”.
This does not continue the operation of the old Act for the purpose of the proceedings. In referring to proceedings “to terminate the right of occupation of a resident of a retirement village that were instituted under the former Act”, it saves proceedings before the Tribunal as contemplated by s 15(d) of the old Act. The proceedings do not fall within cl 8.
In general terms, the old Act regulated the relationship between those conducting retirement villages and the residents of the villages. The new Act contains a much expanded and in some respects modified scheme of the same nature. Sections 129 and 138 of the new Act are provisions broadly equivalent to ss 15 and 23 of the old Act. But nothing in the new Act makes it apply to the issues in the proceedings to the exclusion of the old Act.
In my opinion, the operation of ss 15 and 23 of the old Act remains of significance in the proceedings.
If s 15 operated, it operated to negate Dobson’s purported termination of the licence agreements. Section 15 provided that the rights of occupation terminated only in the four stated circumstances, none of which occurred, so if it operated the purported termination was ineffective. The termination is the basis of Dobson’s claim to possession. It must be decided whether the purported termination was effective, and that requires consideration of the old Act as the law in force at the time of the purported termination.
If s 23 operated, it operated to prohibit Dobson from bringing the proceedings. Section 23 provided that proceedings in the Supreme Court to obtain recovery of possession should not be commenced. Although the Supreme Court still had jurisdiction, the occupants had a complete defence to the proceedings whatever the merits of Dobson’s claim otherwise were, see Whiteford v Commonwealth of Australia (1995) 38 NSWLR 100 at 104-6, 112, 114-5. The due bringing of the proceedings is fundamental to Dobson’s claims. That requires consideration of the old Act as the law in force at the time the proceedings were brought.
A knock-out blow?
Dobson put a general submission, to the effect that ss 15 and 23 of the old Act did not assist the occupants because the old Act did not apply at all to either the Village or the Premises. If the submission were accepted, most of the separate questions were of no relevance and the framing of the questions was unnecessary as well as not ideal. It would be enough to decide that s 15 did not operate so that the licence agreements had not been validly terminated and that Dobson was not precluded by s 23 from commencing the proceedings so far as it claimed possession. But I do not think the submission should be accepted.
Dobson’s argument was that s 5 of the old Act provided that the old Act “applies to retirement villages, to which a code applies”, and that a code did not apply to the Village or the Premises. “Code” was defined in s 3(1) to mean “any code of practice prescribed under the Fair Trading Act 1987 which relates to retirement villages”, and such a code had been prescribed as the Retirement Village Code of Practice Regulation 1995. But, said Dobson, the relevant prescribing power in ss 74 and 75 of the Fair Trading Act spoke of codes “for fair dealing … between a particular class of suppliers and consumers or … by a particular class of persons in relation to consumers”, and cl 4 of the code stated that its provisions applied to “all supplies and consumers involved in the retirement village industry”, including promoters, developers, those who sold property or interests, management and residents. Dobson submitted that it was not a supplier vis a vis the occupants and the occupants were not consumers vis a vis Dobson, therefore the code could not affect it, and so far as the code affected it because purportedly applying to the Village or the Premises the code was beyond power.
I do not see why, even if Dobson and the occupants were not a supplier and consumers between themselves, the code should not be properly regarded as a code applying to the Village or the Premises. There were many possible supplier/consumer relationships involving residents of the Village or the occupants, and the necessary application of the code was to the Village or the Premises, not to the relationship between Dobson and the occupants. But it does not matter, because Dobson was undoubtedly a supplier of services to the occupants within the definitions of “supplier” and “services” in s 4 of the Fair Trading Act. At the least, under the licence agreements Dobson provided to the occupants for valuable consideration and in trade or commerce rights in relation to the lots in the strata plan. It did so in the course of business, being a property developer owning fourteen units and conducting the business of owning and licensing the units.
Question 1: Were the Premises a retirement village?
As I have noted, it was not disputed that the Village was a retirement village. The question addressed the Premises, the fourteen lots scattered throughout the six buildings comprising the Village, as distinct from the Village.
The definition of “retirement village” in s 3(1) of the old Act was -
“’retirement village’ means a complex containing residential premises (whether or not including hostel units) predominantly or exclusively occupied, or intended to be predominantly or exclusively occupied, by retired persons in the pursuance of -
(a)a residential tenancy agreement or any other lease or licence; or
(b) a right conferred by shares; or
(c)the ownership of residential premises subject to a right or option of repurchase or conditions restricting the subsequent disposal of the premises; or
(d)any other scheme or arrangement prescribed for the purposes of this definition,
and for the right to occupy which those persons are or will be required to pay or donate money;”
The dispute over whether the premises were a retirement village focused on the concept of a complex. If the fourteen units were a complex, the complex contained residential premises satisfying the further elements of the definition.
The effect of Dobson’s submissions was that the fourteen units were not a complex because, being scattered through the Village and not the subject of communal administration or enjoying communal facilities distinct from the Village as a whole, they lacked the physical or organisational contiguity and cohesiveness necessary to justify that description. They were part of a complex, the Village, it was said, but not themselves a complex. The effect of the occupants’ submissions was that the fourteen units were a complex because they were part of what had historically been a retirement village, had been purchased together, were all occupied by retired persons under similar licence agreements, and were located in the same general area and were connected by paths and walkways. There was said to be a unity of interconnected parts, even if parts of a greater whole and interspersed with the other parts of the whole.
In my opinion the submissions of Dobson are to be preferred. The concept of a complex in the definition presently under consideration calls for more than historical accident and a degree of physical connection. Organisational unity is important, and was here both absent and negated by the random separation of the fourteen units. Question 1 should be answered no.
Question 2: Was Dobson an administering authority of the Premises?
This question is predicated on the Premises being a retirement village, and does not arise.
Question 3: Was Dobson an administering authority of the Village?
The definition of “administering authority” in s 3(1) of the old Act was -
“’administering authority’, in relation to a retirement village, means the person by or on whose behalf the retirement village is administered and includes a person (other than a resident) who owns land within the village;”
The definition first postulated that there is a person who administers the retirement village or has it administered on his behalf. The task was to identify that person. If the definition stopped there, it is in my view plain that Dobson was not such a person. If it administered anything, it administered less than the Village.
The further words “and include … “ must then be considered. On one view, supported by Dobson, they were no more than precautionary, ensuring that a non-resident owner of land within the retirement village could be found to be the administering authority if that non-resident owner administered the retirement village or had it administered on his behalf. On another view, supported by the occupants, they were expansive, extending the definition so that a non-resident owner of land within the retirement village was without more the administering authority. The latter view brings with it that there could be more than one administering authority.

I am unable to see the words as precautionary, because a non-resident owner of land within the retirement village would not normally fall outside the class of persons by or on whose behalf a retirement village is administered. Status as a non-resident owner of land within the retirement village would be irrelevant to the fact or non-fact of administration.
The use of the statutory formula “means … and includes … ” to provide an expanded definition is not uncommon. The use may be such that the “and includes” shows that the “means” is not exclusive, in the discussion in Burrows, Statute Law in New Zealand, 2nd ed, 243-4. In my opinion that is the use here. The purpose in an expanded definition in the old Act is clear enough. Quite apart from a retirement village the units in which are all owned by a body such as a church or charitable organisation and administered as a whole by or on behalf of that body, there may be a retirement village the units in which are individually owned by non-residents. Individual ownership is not incompatible with there being a complex. The relationship between the individual non-resident owners and the residents needed regulation just as much as the relationship between the wholly-owning body and the residents. Regulation throughout the old Act was by reference to the, sometime an, administering authority. The regulation was extended to individual non-resident owners by making a non-resident owner an administering authority.
Section 8(b) of the Interpretation Act 1987, by which the singular may include the plural, readily permits the definition to extend to a multiplicity of administering authorities. In my opinion, Dobson was an administering authority of the Village. Question 3 should be answered yes.
Question 4: Was Dobson precluded from commencing the Supreme Court proceedings so far as it claimed possession?
For present purposes question 4 proceeds on the basis that question 3 has been answered yes. On the clear words of s 23 of the old Act, the issue must be decided in favour of the occupants. Question 4 should be relevantly answered yes; in due course I state the answer more fully.
Question 5: Does s 15 of the old Act operate so that the licence agreements had not been validly terminated?
Question 5 proceeds on the basis that question 1 has been answered no. Dobson submitted that, read in context, s 15 only operated when the person terminating the residence contract was the administering authority of the retirement village, and that the question should be answered no because Dobson was not the administering authority of the Village. I express no view on this reading of s 15. Dobson was an administering authority of the Village, so even if it be correct it does not avail Dobson.
Still on the basis that question 1 had been answered no, Dobson then submitted that s 15 had no operation in that event because, the Premises not being a retirement village, the occupants were not residents of a retirement village. However, it is enough that the occupants were residents of a retirement village because the Village was a retirement village. It matters not that there was a sub-set of units within the Village, the fourteen units owned by D+obson comprising the Premises, which was not a retirement village.
In my opinion, s 15 operated to preclude Dobson from terminating the licence agreements as it did. Question 5 should be answered yes.
The occupants’ application
The occupants applied in this Court to amend their defence and cross-claims to rely on s 129 and 138 of the new Act as well as ss 15 and 23 of the old Act. The amendments took the form of relying on ss 15 and 23 of the old Act until 30 June 2000 and ss 129 and 138 of the new Act thereafter. The application was accompanied by an application that this Court receive further evidence in aid of answering, and answer, further separate questions in similar terms to the existing separate questions (including their less than ideal framing), referable to ss 129 and 138 of the new Act rather than to ss 15 and 23 of the old Act.
In my opinion the Court should decline to entertain the former application and should dismiss the latter application. The proper occasion for any amendment is an application at first instance. I am not persuaded that the new Act has any practical part to play in the resolution of the disputes between the parties, but if in the light of these reasons the occupants consider that it has then they can make such an application, or proceed with it if it has already been made. If the application is granted then any appropriate consequential directions can be given, one hopes bringing the entire proceedings to a hearing rather than indulging in another excursion into separate questions. This Court should decline to entertain the former application, rather than dismiss it, in order to avoid any inhibition on an application at first instance. In the absence of present amendment to the defence, this Court should not receive the further evidence or take up the further questions.
Answers to the questions
The questions should be answered as follows:
1.Whether the Premises are a retirement village within the meaning of section 3(1) of the Act.
No.
2.If the answer to question 1 is ‘yes’, whether Dobson is the ‘administering authority’ of the Premises for the purpose of section 23 of the Act.
Does not arise.
3.If the answer to question 1 is ‘no’, whether Dobson is an ‘administering authority’ of Elim Village for the purpose of s 23 of the Act.
Yes.
4.If the answers to questions 2 and/or 3 is ‘yes’, whether Dobson is thereby precluded from commencing proceedings in this Court:
a)in relation to:
i) the Defendants’ to pay arrears of rent;
ii)the recover of possession of the Premises; and/or
iii)the relief sought by Dobson in its statement of claim; and/or
b)by reasons of sections 15 or 23 of the Act.
Dobson was an administering authority of the Village and was precluded by s 23 of the Act from commencing proceedings in the Supreme Court to claim possession of the Defendants’ units.
-
5.If the answer to question 1 is ‘no’, does section 15 of the Act apply such that the residence contracts between the Defendants and Dobson have not each been validly terminated.
Yes.
6.If the answer to questions 2 and 3 is ‘no’ does the Residential Tribunal nevertheless have jurisdiction to determine the issue between the parties to the present proceedings.
This question should not be answered.
To revert to the issues earlier identified, it appears that two paths to defeat for Dobson’s claim to possession of the occupants’ units have been established, namely path (c) issue 1 no, issue 3(i) yes and path (d) issue 1 no, issue 3(ii) yes and yes. However, that is not a matter for this Court.
Orders
I propose the following orders -
1.Appeal allowed.
2.Set aside the answers to the questions and in lieu thereof answer them as set out in these reasons.
3.Decline to entertain the appellants’ applications to amend their defences.
4.Dismiss the applicants’ applications that this Court receive further evidence and answer further separate questions.
5.Order that the respondent pay the appellants’ costs of the appeal, including of its applications, and of the proceedings before Master Malpass, and have a certificate under the Suitors Fund Act if otherwise qualified.

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LAST UPDATED: 11/04/2001

[2001] NSWCA 96

10 April 2001

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Appeal

Jurisdiction

Statutory Construction

Breach