Milstern Retirement Services Pty Ltd v Taylor
[2013] QCATA 185
•12 June 2013
| CITATION: | Milstern Retirement Services Pty Ltd v Taylor [2013] QCATA 185 |
| PARTIES: | Milstern Retirement Services Pty Ltd (Applicant/Appellant) |
| v | |
| Judith Cecelia Taylor (Respondent) |
| APPLICATION NUMBER: | APL347-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Senior Member Michelle Howard, Member |
| DELIVERED ON: | 12 June 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal is refused; 2. Milstern Retirement Services Pty Ltd ACN ACN002053018 pay Judith Cecilia Taylor’s costs of and incidental to the proceeding on the standard basis of assessment in accordance with the District Court Scale of costs. 3. If the amount of Ms Taylor’s costs are not agreed between Ms Taylor and Milstern Retirement Services Pty Ltd within 14 days, the costs are to be assessed by Hickey & Garrett, Legal Costs Consultants, Level 21, 141 Queen Street, Brisbane at the cost of Milstern Retirement Services Pty Ltd; 4. Milstern Retirement Services Pty Ltd is to pay Ms Taylor’s costs (as agreed or assessed) within 14 days of such agreement or assessment. |
| CATCHWORDS: | APPLICATION FOR LEAVE TO APPEAL - RETIREMENT VILLAGES –- where no orders made against the appellant in Tribunal’s original jurisdiction – where no substantive relief could be obtained by appellant – where consideration also given to application as though second respondent in original proceedings had made the application – where no error identified by grounds of appeal Queensland Civil and Administrative Tribunal Act 2009 Retirement Villages Act 1999 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Cachia v Grech [2009] NSWCA 232 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Lovell v Lovell (1950) 81 CLR 513 |
APPEARANCES and REPRESENTATION (if any):
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
This is a rather unusual appeal. Milstern Retirement Services Pty Ltd seeks leave to appeal a decision of the Tribunal. It was one respondent to an application made by Ms Taylor under the Retirement Villages Act 1999 (RV Act). The second respondent in the proceeding was Milstern Retirement Living Pty Ltd. The Tribunal made orders for Milstern Retirement Living Pty Ltd to pay a sum of money to Ms Taylor for her exit entitlement, together with a payment for her legal costs. No orders were made against Milstern Retirement Services Pty Ltd.
In the application for leave to appeal and appeal, Milstern Retirement Services nominates Milstern Retirement Living Pty Ltd as it representative, but it is not named as a party. Despite this apparently curious approach, as neither company is legally represented, we have considered whether the result of this application would be different if Milstern Retirement Living had made it, in case the intention was for both companies to make the application. As becomes clear, the application is without merit and must fail in any event.
There is also some apparent confusion in the material relied upon by Milstern Retirement Services about what issues the Tribunal decided in the decision for which leave is sought to appeal. The Tribunal made two final decisions in the proceeding. The two decisions were about different issues.
Some of the matters raised in the application relate to the issues decided in the earlier decision, which was not appealed. For the benefit of Milstern Retirement Services, which as already noted is unrepresented, we have made some observations about matters it raises regarding the earlier decision, which are not strictly relevant to the application under consideration. These observations are made to assist its understanding.
Background and the orders of 12 September 2012
Some further background is desirable. On 13 July 2011, a Member of the Tribunal ordered Milstern Retirement Living to pay Ms Taylor an exit entitlement of $121,500 less fees and charges deductible under the lease, the RV Act, or the Public Information Document (PID). We will refer to this as the 2011 decision. The parties were ordered to file submissions about the fees and charges which were deductible and about costs of the proceeding.
The Tribunal then made a further decision on 12 September 2012 (the 2012 decision), limited to calculating the proper deductions under its order and regarding costs of the proceedings. Orders were made for Milstern Retirement Living to pay Ms Taylor $102,329.50 within 21 days plus her costs, essentially as agreed or failing agreement as assessed on the standard basis in accordance with the District Court Scale, within 14 days of agreement or assessment.
The application for leave to appeal and appeal
Milstern Retirement Services’ application for leave to appeal and appeal in relation to the 2012 decision did not set out grounds of appeal but it has subsequently made submissions in support of the application. For completeness, we note that the submissions are clearly marked as submissions from Milstern Retirement Services only as applicant.
The grounds of appeal as we understand them may be summarised as follows:
(a) The amount awarded in the 2011 decision, that is, $121,500, does not represent fair market value;
(b) Ms Taylor has previously accepted the capital gain component of the fees and charges being claimed but using the inflated price in calculating it is contrary to the RV Act;
(c) Ms Taylor held a 99 year lease, not a right to reside, and only she is entitled to sell the unit;
(d) Ms Taylor’s solicitor mislead the Tribunal in advising that Milstern Retirement Services has a controlling right to sell the unit;
(e) The fees and charges claimed as deductions by Milstern Retirement Services should have been accepted;
(f) Ms Taylor has made no attempt to sell the unit;
(g) Concerning costs, Ms Taylor had no claim against Milstern Retirement Services.
The appeal can only proceed if leave to appeal is granted.
When should leave to appeal be granted?
Finality in litigation is highly desirable because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties.[1] Leave to appeal is required before the appeal can proceed because an appeal on a question of fact or a question of mixed law and fact, may only be made with the leave of the Appeal Tribunal.[2] In this instance, all of the grounds of appeal involve questions of fact or mixed fact and law.
[1] See Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Kirby and Gummow JJ.
[2] QCAT Act s 142(1) and 142(3)(b).
The question whether or not leave to appeal should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?[3] Is there a reasonable prospect that the applicant will obtain substantive relief?[4] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[5] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[6]
The purpose of the appeal process
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4] Cachia v Grech [2009] NSWCA 232 at 2.
[5] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[6]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
An appeal is not an opportunity to argue the case again in an attempt to secure a different result. The Appeal Tribunal’s duty is to determine whether there is an error in the primary decision. The Tribunal’s decision will stand unless an error is identified.
Findings of fact by a tribunal will not usually be disturbed on appeal if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.[7] It is not enough that the Appeal tribunal comes to the view that, had its members been sitting in the matter originally, they may have reached a different conclusion. It must be shown that there has been a mistake in assessing the factual evidence, like a failure to take some material evidence into account, before the Appeal tribunal can interfere.[8]
The grounds of appeal
[7]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at
125-126.
[8] Lovell v Lovell (1950) 81 CLR 513.
Firstly, as concerns the grounds of appeal as identified in paragraph [8] (a) to (g) above, we would not grant leave to appeal to Milstern Retirement Services. No orders were made against Milstern Retirement Services. Therefore, regardless of whether the Tribunal made an error (which as we shall explain, we do not accept it did), Milstern Retirement Services has not suffered an injustice for which it would be entitled to substantive relief.
As discussed earlier, we have considered the grounds of appeal, as though the application for leave to appeal was also made by Milstern Retirement Living. As we will explain, there is no basis upon which leave to appeal would be granted to Milstern Retirement Living. Each of the grounds is considered below.
The amount awarded on 13 July 2011 is not fair market value
The decision for which leave to appeal is sought is the 2012 decision.
As outlined above in the 2011 decision, the Tribunal determined that the exit entitlement or fair market value of Ms Taylor’s right to reside was $121,500.[9] Orders were made for payment (less proper deductions) to Ms Taylor. The 2011 decision was not appealed.
[9][2011] QCAT 369 (13 July 2011), especially at [96-102, 125].
The decision about the value can not be revisited in the current proceeding. It is worth noting that following the 2011 decision, in its submissions about deductions, Milstern Retirement Living (as well as Milstern Retirement Services) specifically stated that although it disagreed with the amount awarded for the unit, it accepted it.
As previously outlined, the 2012 decision then determined only the proper deductions to be made from the exit entitlement, in accordance with the lease, the PID, and the RV Act. The determination of the value of the exit entitlement itself was not revisited.
It follows that the submission that the amount awarded in the 2011 decision was wrong does not relate to the decision appealed (i.e. the 2012 decision). It has no merit and must inevitably fail.
That said, we have also read the thoughtful and comprehensive reasons of the Tribunal for the 2011 decision. We did not identify error in the Tribunal’s reasoning process. Therefore, if (contrary to the earlier submissions that the award of $121,500 was accepted), leave was sought (considerably out of time) to appeal the 2011 decision, a basis upon which such an application could succeed, is not identified.
Ms Taylor has previously accepted the capital gain component of the fees and charges being claimed but using the unrealistic inflated price in calculating it is contrary to the Act
The reference to the ‘unrealistic inflated price,’ seems to be no more than a further reference to the Tribunal’s finding in the 2011 decision about the exit entitlement of $121,500.
The ground of appeal generally lacks clarity. We do not know when or how it is alleged that Ms Taylor accepted the capital gains tax component of fees and charges. The 2012 decision sets out Ms Taylor’s submitted calculations of the fees and charges.[10] They (unlike Milstern Retirement Living’s submissions)[11] do not include a capital gains component.
[10] [2012] QCAT 433, [6-7].
[11] [2012] QCAT 433, [3-5].
In any event, no error in the 2012 decision is alleged.
The ground has no merit.
Ms Taylor held a 99 year lease, not a right to reside, and is the only person entitled to sell
Again, these were not issues related to or decided by the 2012 decision. Therefore, the ground of appeal has no merit in an application for leave to appeal the 2012 decision.
However, we make some observations. In the 2011 decision, the Tribunal found that Ms Taylor’s lease and right to reside was terminated by the scheme operator under s 53 of the RV Act, effective as of 20 May 2006.[12] The termination was effected through lawyers acting for the scheme operator.
[12] [2011] QCAT 369 (13 July 2011), especially at [8-14, 98].
Although the submissions lack clarity, the argument appears to be that the Tribunal was not informed that Ms Taylor had a 99 year lease, not a right to reside and, further, it seems to be submitted that because there was a lease the decision is incorrect.
In the 2011 decision, the Tribunal recognised issues arising from the interaction between the old lease (executed in 1996) and the current RV Act (which came into effect in 1999).[13] It determined that both were terminated by the scheme operator. It was aware of the lease. The submissions do not acknowledge this. Nor do the submissions point to any error in the Tribunal’s reasoning. It is apparently merely asserted that because of the existence of the 99 year lease, Milstern Retirement Services can not sign a contract for sale of Ms Taylor’s interest.
[13] [2011] QCAT 369 (13 July 2011), especially at [36-37, 102-103].
Specifically, the Tribunal found that the ‘parties have misdirected themselves over time in acting as if the resident must sell the right to reside before the resident is entitled to payment.’[14] It determined that under the lease, that would only be so if the resident had terminated the right to reside.[15]
[14] [2011] QCAT 369 (13 July 2011), [122].
[15] [2011] QCAT 369 (13 July 2011), [122].
Although the Tribunal did not refer to it in its reasons, by virtue of clause 6.4 of the lease, the resident (Ms Taylor) had irrevocably appointed the owner (the registered scheme operator under the RV Act), as attorney to execute and deliver a surrender of the lease, in the event of termination of the lease by death of the resident or by the owner in accordance with the lease or other powers applying by operation of law. The Tribunal found, as discussed earlier, that the scheme operator had terminated the lease and the right to reside.
Ms Taylor’s representative mislead the Tribunal about the controlling right to sell
The submission made by Milstern seems to be that Ms Taylor’s legal representative intentionally mislead QCAT in advising Milstern Retirement Services had controlling right to sell the unit.
The submission, to the extent that it is intended to be a ground of appeal is vague. Once again, it appears it is made in relation to the 2011 decision which is not under appeal, as it does not relate to deductions to be made from the price or costs. The ground of appeal has no merit in respect of the 2012 decision.
However, we make some additional observations. Even if, and we do not suggest that this is the case, the lawyers for Ms Taylor made a submission which was incorrect, this does not indicate that any error was made by the Tribunal. The Tribunal carefully and at some length considered the relevant statutory provisions, the lease provisions and the PID, to reach its conclusions and make its orders.
Fees and charges claimed by Milstern Retirement Services should be accepted
The submission by Milstern seems to be that because the unit has been empty since Ms Taylor vacated, it has not been used and has depreciated. Confusingly, it goes on to say that it is in the same condition now as when the right to reside was terminated in 2006. Therefore, it says, work is required as per its quote from Chardy’s Complete Home Maintenance.
The fees and charges properly deducted were determined by the Tribunal in the 2012 decision. The Tribunal carefully explained the reasons for its decision. It had the claim by Milstern for reinstatement costs in accordance with Chardy’s quote.[16] It rejected that claim.
[16] [2012] QCAT 43, [[4, 16-17,27-28]
No error in the decision has been identified by Milstern. The submission seeks, in essence, to again argue its case as presented to the Tribunal previously in the attempt to secure a different result. As explained earlier, this is not the purpose of an appeal.
The ground of appeal has no merit.
Ms Taylor has made no attempt to sell the unit
Once again, this ground of appeal is vague and uncertain. The allegation may be that Ms Taylor has not, since the Tribunal’s orders sought to sell the unit. Alternatively, it may be suggested that Ms Taylor has at no time sought to sell the unit.
As discussed previously, the decision for which leave is sought to appeal, is the 2012 decision, which related only to the proper deductions. Therefore, once again, this ground of appeal has no relevance to the decision appealed and does not reveal any error in that decision. The ground of appeal has no merit in respect of the 2012 decision.
We again make some observations. Given the 2011 decision, it is not surprising that Ms Taylor has not since sought to sell the unit, if that is the allegation. Whether or not that is so, the submission does not suggest any error by the Tribunal in its decision.
If the allegation is that Ms Taylor did not, after termination of the right to reside but prior to the 2011 decision, seek to sell the unit and that the decision is therefore somehow in error, that is not clear. However, in apparent contradiction to the ground of appeal asserted, as the Tribunal set out in its decision,[17] an affidavit from the then site manager for Milstern, James Garvin, was to the effect that Ms Taylor did at one stage engage a real estate agent to sell the right to reside.
[17] [2011] QCAT 369, [25].
Also, as discussed earlier, the Tribunal in its 2011 decision specifically found that the parties had misdirected themselves in acting as if the resident had to sell the right to reside in the circumstances of termination by the scheme operator.
Costs
Leave to appeal is sought in relation to the costs order made in the 2012 decision, in favour of Ms Taylor against Milstern Retirement Living.
The submissions are to the effect that Milstern Retirement Services, against whom Ms Taylor did not have a claim, has occasioned ‘considerable costs in defending this illegal matter’, that s 100 of the QCAT Act should be applied, and that each party should pay its own costs.
The Tribunal exercised its discretion under s 102 of the QCAT Act to award costs in the interests of justice against Milstern Retirement Living. It considered a variety of factors in reaching its decision. These included the relative strength of Ms Taylor’s case as against Milstern Retirement Living in light of the ‘clear terms of the lease and her entitlement to payment of fair market value of the right to reside…. upon termination…’ by the scheme operator;[18] that Ms Taylor has incurred considerable costs in the proceedings;[19] and that Ms Taylor has not had access to monies to which she became entitled in 2006.[20]
[18] [2012] QCAT 433, especially at [44(c)].
[19] [2012] QCAT 433, especially at [44(d)].
[20] [2012] QCAT 433, especially at [44(e)].
The Tribunal was entitled to form the view that in the interests of justice, the contra-indication against costs contained in s 100 of the QCAT Act was overcome. The Tribunal set out compelling reasons for forming this view. It ordered that Milstern Retirement Living pay the costs. No error is identified in the Tribunal’s decision or exercise of discretion.
The ground of appeal has no merit.
Conclusions
Therefore, the grounds of appeal have no merit, whether they are advanced by Milstern Retirement Services or Milstern Retirement Living. The application for leave to appeal is dismissed.
Costs of this application
Ms Taylor has incurred further legal costs in these appeal proceedings. She seeks an order for costs against Milstern Retirement Services.
She submits that such an order is in the interests of justice under s 102(1) of the QCAT Act, because no reasonable grounds of appeal were stated; because an attempt has been made in the proceedings to appeal not only the 2012 decision, but also the 2011 decision; because the same arguments are being asserted as were made previously; and the proceedings have been filed for the sole purpose of delaying recovery by Ms Taylor under the Tribunal’s orders.
We do not have evidence about the purpose of the proceedings, and as a stay has not been sought, do not infer that recovery under the orders has been delayed. However, we have found that there is no merit in the grounds of appeal which were vague and identified no errors by the Tribunal in the 2012 decision. Also, the appeal proceedings have been, on their face, prosecuted by an applicant against whom no orders were made.
Further, the grounds of appeal purported to raise issues decided in the 2011 decision, which was not sought to be appealed.
For these reasons, we consider the strong contra-indication against costs contained in the QCAT Act is displaced. In the interests of justice, we make orders pursuant to s 102 of the QCAT Act that Milstern Retirement Services pay Ms Taylor’s costs of and incidental to the application for leave to appeal and appeal, in similar terms to the orders made by the Tribunal in its 2012 decision for Milstern Retirement Living to pay Ms Taylor’s costs. We make orders only against Milstern Retirement Services on this application, as it has nominated itself as the only applicant.
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