Irving v Noyea Riverside Retirement Village

[2013] QCAT 229

CITATION: Irving v Noyea Riverside Retirement Village [2013] QCAT 229

PARTIES:	Mrs Barbara Irving Mr Stephen Irving (Applicant)
v
Noyea Riverside Retirement Village (Respondent)

APPLICATION NUMBER: OCL051-12

MATTER TYPE: Other civil dispute matters

DECISION OF: Pam Goodman, Member

DELIVERED ON: 16 May 2013

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The application is dismissed.

CATCHWORDS:

RETIREMENT VILLAGES – Where fireplace in a common area removed and wall repaired – whether works amount to capital improvement.

Retirement Villages Act 1999 s 90

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. The applicants reside in a retirement village operated by the respondent.

2. This dispute arises out of action taken by the respondent to remove a fireplace in a common area of the village and gyprock the resulting hole in the wall. The fireplace was located on the top floor of the Clubhouse in the village. The applicants claim the works amounted to a capital improvement, and so the respondent is solely responsible for the cost.[1] The respondent claims the work was by way of maintenance and repair.

   [1]        Retirement Villages Act 1999 s 90.

The Legislation

1. I have had regard to the provisions of the Retirement Villages Act 1999 (RVA), and the Queensland Civil and Administrative Tribunal Act2009.

2. The RVA provides:

a)The respondent is solely responsible for the cost of the retirement village’s capital improvement, including the capital improvement of the retirement village’s communal facilities owned by the scheme operator[2];

[2] Section 90.

b)“capital improvement” means the first time provision of a capital item..[3]

[3]        Schedule Dictionary.

c)“Capital items” include—

(a) all buildings and structures located in the retirement village and owned by the scheme operator, including the communal facilities, amenities and accommodation units, other than items that, under the residence contract, are to be maintained, repaired and replaced by the resident;

(b) all plant, machinery and equipment used in the operation of the village, other than items that are body corporate property;

Examples for paragraph (b)—
communal hot water and air conditioning services, kitchen and dining room equipment, community facility furnishings, gardening equipment, village bus or transportation services

(c) all village infrastructure owned by the scheme operator.

Examples for paragraph (c)—
roadways, pathways, drainage, sewerage mains, landscaping, electrical distribution systems, water services and connections and distribution systems

Submissions Of The Parties

1. The applicants submit that:

a)Removal of the fireplace and repairing the resulting hole in the wall in the village clubhouse amounted to a capital improvement.

b)The removal was unnecessary and undertaken without proper consultation. Repairs could have been made to the fireplace to allow it to continue to function.

1. The respondent submits:

a)Removing the fireplace was the most appropriate action in the interests of safety and to minimise costs with ongoing maintenance of the fire place and water leakage.

b)The works are not “capital improvement” and so the scheme operator is not solely responsible for the cost.

Issue For Determination

1. The Tribunal must determine whether the works were “capital improvement”.

2. There is no application before me to determine whether the works were the most appropriate course of action, or whether sufficient consultation was undertaken. Accordingly, I do not propose to address those issues any further.

Findings Of The Tribunal

1. For the works to be a capital improvement, they must be the “first time provision of a capital item”.[4] I note that the legislation also makes reference to rulings made under the Taxation Administration Act1953 (Cth). There is no suggestion by the applicant that this scenario is covered by such a ruling.

   [4]        Schedule Dictionary.

2. In determining whether there has been a “first time provision of a capital item”, I must consider what is being provided, rather than what has been removed. I find that what has been provided is part of the surface of an internal wall – there is no evidence that any structural work was undertaken. The first time provision is of a non-structural section of an internal wall.

3. Can installation of a non-structural part of an internal wall be a “capital item”?

4. As noted above, “capital items” is defined in the legislation. The new part of the wall is not “plant, machinery and equipment used in the operation of the village”, nor is it “village infrastructure” such as roadways, drainage, landscaping, water services.[5]

   [5]        Schedule Dictionary.

5. The definition of “capital items” also includes:

   “all buildings and structures located in the retirement village and owned by the scheme operator, including the communal facilities, amenities and accommodation units, other than items that, under the residence contract, are to be maintained, repaired and replaced by the resident.”

6. While the section of the internal wall that was repaired is part of a building, and arguably part of a structure, it is not in itself a building or structure. That is to say – the works that have been completed could not be described as “the first time provision of a building or structure”.

7. The alterations to the area by removing the fireplace and replacing it with a new section of the wall did not provide a new building or structure, and so did not amount to the first time provision of a capital item.

8. It must follow that the repair of the wall is not a capital improvement and s 90 RVA does not apply.

9. The application will be dismissed.