John Murphy v Office Holders of Vaughan Village Residents Association

[2015] NSWCATCD 45

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	John Murphy v Office Holders of Vaughan Village Residents Association [2015] NSWCATCD 45
Hearing dates:	17 September 2014
Decision date:	01 April 2015
Jurisdiction:	Consumer and Commercial Division
Before:	Geoffrey Meadows, Senior Member
Decision:	The application is dismissed for lack of jurisdiction
Catchwords:	Retirement Village
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Retirement Villages Act 1996
Category:	Principal judgment
Parties:	John Murphy (applicant) Office Holders of Vaughan Village Residents Association (respondent)
Representation:	Applicant in person Mr Shumsky, Ms Holmes and Mr Shepherd (respondent)
File Number(s):	RV 14/32017
Publication restriction:	Nil

REASONS FOR DECISION

Background

1. This application was filed in June 2014 seeking the following orders:

“ORDER DETAILS

13. What orders do you want

Section/s   Terms of the order/s

47   Appendix to constitution (Minutes 2011) is inconsistent with the rules which were not rescinded.

51(3)   The residents of Vaughan Village did not consent to the amendment (appendix) by Special resolution.

52(2)(a)   prohibit the proposed amendment

54(1)(a)   The Tribunal rule that the appendix to the constitution be ruled invalid

54(1)(b)   The Tribunal rule the appendix is unjust, unconscionable and oppressive and is designed exclude some residents from ever holding the office of Chairman

71(1)   The Residents Committee must conform to Vaughan Village regulations

71(2)   The Residents Committee conform to the Vaughan Village rules.

75(2)   R. J. O'Shea Management and staff must not attend or remain at a meeting of residents Unless the residents at the meeting consent to their presence at the meeting.

75(2B)   That the Operator or operator's representative must not be present at a meeting of the Residents during the casting of any vote that is to be taken by the residents at the Meeting.

128(1)(c)   Restrain the Vaughan Village Committee from ignoring the constitution and rules of Vaughan Village by not electing a Chairman at the AGM , not circulating an agenda, refusing to put items requested by residents on an agenda, not requiring motions to be put and seconded and taking a vote and recording those for, against and abstaining by not keeping accurate minutes and refusing to give residents copies, by refusing to table correspondence and accepting resolutions to accept budgets when information is incomplete.”

2. In documents filed on 1 September 2014, the applicant sought amended or further orders as follows:

1. That the Tribunal declare the Vaughan Village Residents Association Advisory Committee Meeting Monday 4 August be declared invalid as a quorum was not present;

2. That the Tribunal declare the Vaughan Village Residents Association Meeting 6 May 2014 be declared invalid as the meeting was attended by a Father Joseph Aikaramattam, a tenant, whom the village believed to be a resident.

3. the Tribunal declare the Annual General Meeting of the Vaughan Village Residents Association and the election of office bearers illegal;

4. That the Tribunal order the Vaughan Village Residents Association to adopt the Model Rules and set aside the now unworkable constitution;

5. An order that section 75(2) of the Act be adhered to;

6. An order prohibiting the amendment [to the constitution] and directing the amendment be modified by instead using the NSW Fair Trading Model Rules;

7. An order that the Tribunal denies the legal validity of the Appendix to the Constitution in force in the Village;

8. An order setting aside the Appendix;

9. An order that the Appendix is of no effect to the extent that it is inconsistent with the Vaughan Village Residents Association Constitution established under the Retirement Villages Act 1999;

3. The application was originally filed with the applicant’s name spelled “Nurphy” and the operator described as “Trustees Catholic Aged Care”. In accordance with the Registry’s usual procedures, the operator was entered as the respondent. These two identifications were later amended following correspondence from the applicant, first to spell his name correctly as “Murphy” and secondly to amend the name of the respondent to “Office Holders of Vaughan Village Residents Association”.

4. I note that the orders sought by the applicant are in essence directed against the Vaughan Village Residents Association. Although the original orders do refer to the operator and to R. J. O’Shea Management, the burden of the orders sought is nevertheless in relation to the functioning of the Vaughan Village Residents Association as implemented and controlled by the Vaughan Village Residents Association. This is not an application against the operator of the Village.

The Evidence

5. The matter was listed for directions before Member Rosser on 24 July 2014. On that occasion orders were made for the parties to file and serve submissions in relation to a jurisdictional issue: does the Tribunal have jurisdiction to deal with an application by a resident against another resident (or residents) or the residents committee under the Retirement Villages Act 1999.

6. In accordance with those directions, each party filed detailed and lengthy submissions and evidence in support of their respective positions. As noted above, the applicant’s submissions also contained amended or further orders, although leave had not been granted to amend the application.

7. The applicant’s evidence is voluminous and detailed and is well-organised under 12 separate tabs. The applicant has obviously gone to considerable effort to prepare and present his case.

8. I should note that the same comment applies to the respondent’s evidence.

The Legislation

9. The Tribunal is a creature of statute: it derives its jurisdiction from the Acts of Parliament listed in Schedule 4 to the Civil and Administrative Tribunal Act 2013 (CAT Act (including the Retirement Villages Act 1996 (RV Act)) and the Cat Act itself.

10. The RV Act contains the following Parts:

Part 1 Preliminary

Part 2 Application of Act

Part 3 Representations and information about retirement villages

Part 5 Village contracts

Part 6 General management of retirement villages

Part 7 Financial management of retirement villages

Part 8 Disputes

Division 1 Preliminary

121 Application of Part

Division 2 Dispute resolution

122 Disputes between operator and resident

123 Jurisdiction of Tribunal

124 (Repealed)

125 Informal resolution of disputes

Division 3 Civil and Administrative Tribunal

126 Ancillary orders

127 No monetary limit on jurisdiction of Tribunal

128 Order of Tribunal

Part 9 Termination of residence contract

Part 10 Matters relating to vacation of premises

Part 10A Protection of ingoing contributions paid by residents other than registered interest holders

Part 11 Enforcement

Part 12 Administration

Part 12A Powers of investigation

Part 13 Miscellaneous

Schedule 1 Consent of residents

Schedules 2, 3 (Repealed)

Schedule 4 Savings, transitional and other provisions

11. I set out those Parts of the RV Act to give an indication of its scope. Part 8 deals with disputes. A careful reading of that Part discloses that it concerns only disputes between the operator and a resident, or the operator and one or more residents. Those provisions do not apply to this application.

Consideration and Decision

12. Under Part 6, Division 3 “Certain rights of residents”, the RV Act includes provisions in relation to Residents Committees and organisations. There are no provisions within that Division 3 providing for an application to resolve a dispute of the kind the subject of this application.

13. Section 71 of Division 3 of Part 6 provides for regulations to be made for or with respect to the election, function, and procedure of Residents Committees and sub-committees, and for the prescribing of model rules that may be adopted by a Residents Committee.

14. Regulation 39 of the Retirement Villages Regulation 2009 (RV Regulation) provides that a Residents Committee may, at the request of one or more residents of the village, apply to the Tribunal on behalf of the resident or residents concerned for any order for which a resident may apply. The Residents Committee may apply to the Tribunal on behalf of all residents for an order for which a resident may apply if the residents consent to the application.

15. There is no provision in that Regulation for an application to be made of the kind of this application.

16. I am unable to find any section or provision of the RV Act or RV Regulation which gives this Tribunal the jurisdiction to hear this application. The application is therefore dismissed for want of jurisdiction.

Geoffrey Meadows

Senior Member

Civil and Administrative Tribunal

1 April 2015

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 11 June 2015