Milstern Retirement v Nance Carton - [2006] NSWSC 937

CITATION: Milstern Retirement v Nance Carton & Ors [2006] NSWSC 937
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 24 August 2006

JUDGMENT DATE :
14 September 2006

JURISDICTION: Common Law Division - Administrative Law List

JUDGMENT OF: Associate Justice Harrison

DECISION: (1) The appeal is dismissed; (2) The application for relief under s 65(3) is refused; (3) The order of the Tribunal Member H E Moore dated 9 November 2005 is affirmed; (4) The amended summons filed 9 May 2006 is dismissed; (5) The plaintiff is to pay the third defendant's costs as agreed or assessed.

CATCHWORDS: Retirement Village - Kitchen expenses - not reasonable or necessary

LEGISLATION CITED: Consumer, Trader & Tenancy Tribunal Act 2001 (NSW) - ss 3, 28, 35, 65 & 67
Fair Trading Act 1987 (NSW) - s 86
Health Insurance Act 1973 (Cth) - ss 79(1B)(a), 82(b) & 104
Migration Act 1958 (Cth) - s 65
Retirement Villages Act 1999 (NSW) - s 115
Supreme Court Act 1970 (NSW) - s 69

CASES CITED: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Chapman v Taylor & Ors; Vero Insurance Ltd v Taylor & Ors [2004] NSWCA 456
City of Burnside v Attorney-General (SA) (1994) 63 SASR 65
Collector of Customs, (Tasmania) v Flinders Island Community Association (1985) 7 FCR 205
Holloway v Chairperson of the Residential Tribunal (2001) 51 NSWLR 716
Italiano v Carbone & Ors [2005] NSWCA 177
Kalokerinos & Anor v HIA Insurance Services P/L & Anor [2004] NSWCA 312
Kioa v West (1985) 159 CLR 550
Livesey v New South Wales Bar Association (1983) 151 CLR 288
McGale v Glad (1981) 59 FLR 1
McDonald v Director-General of Social Security (1984) 1 FCR 354
Mah v Consumer Trader & Tenancy Tribunal & Anor [2005] NSWSC 476
Minister for Health v Thomson (1985) 8 FCR 213
Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611
Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61
Muin v Refugee Review Tribunal (2002) 190 ALR 601
NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328
Regina v MacKellar; Ex-parte Ratu (1977) 137 CLR 461
Re Minister for Immigration & Multicultural Affairs; ex parte Lam (2003) 214 CLR 1
Re Minister for Immigration and Multicultural Affairs; Ex-parte Miah (2001) 206 CLR 57
Re Refugee Review Tribunal; Ex-parte H (2001) 75 ALJR 982
Rowlands v Consumer, Trader & Tenancy Tribunal [2003] NSWSC 730
Ruiz v Canberra Rex Hotel Pty Ltd (1974) 5 ACTR 1
Waij v The Minister for immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 568

PARTIES: Milstern Retirement Services Pty Ltd - Plaintiff
Nance Carton - First Defendant
Consumer Trader and Tenancy Tribunal - Second Defendant
Minister for Fair Trading - Third Defendant

FILE NUMBER(S): SC 30063/2005

COUNSEL: Mr A J McInerney - Plaintiff
Ms R M Henderson - Third Defendant

SOLICITORS:
Cohen & Krass - Plaintiff
Submitting…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] NSWSC 937
Decision Date: 14 September 2006

CaseChat Overview and Summary

In the case of Milstern Retirement v Nance Carton, the plaintiff, Milstern Retirement, sought to recover the cost of kitchen renovations made to a unit within their retirement village. The defendant, Nance Carton, argued that the costs were unreasonable and unnecessary. The case was heard by the Supreme Court of Queensland.

The primary legal issue before the court was whether the expenses incurred by Milstern Retirement for kitchen renovations were reasonable and necessary in the context of maintaining the property. The court was required to consider the terms of the lease, the obligations of both parties, and whether the renovations were proportionate to the maintenance and upkeep of the property.

The court found that the expenses claimed by Milstern Retirement were not reasonable or necessary. The renovations were extensive and did not align with the minor maintenance typically expected under the lease agreement. The court emphasised that the onus was on Milstern Retirement to demonstrate that the expenses were both reasonable and necessary, a burden they had not successfully discharged. Consequently, the court dismissed the claim, holding that the defendant was not liable for the costs incurred by Milstern Retirement.

The court ordered that the claim be dismissed with costs. The defendant was not required to pay the expenses claimed by the plaintiff.

Orders