Nielsen v Runaway Bay Village Pty Ltd
[2011] QCAT 658
•28 November 2011
| CITATION: | Nielsen v Runaway Bay Village Pty Ltd [2011] QCAT 658 |
| APPLICANT: | Fay Nielsen |
| v | |
| RESPONDENT | Runaway Bay Village Pty Ltd |
| APPLICATION NUMBER: | OCL094-11 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | 11 November 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Susan Gardiner, Member |
| DELIVERED ON: | 28 November 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application is dismissed. |
| CATCHWORDS: | RETIREMENT VILLAGES – where scheme offered two types of accommodation, independent living units and serviced apartments – whether serviced apartments were charged an extra fee – where a resident not using the services sought not to pay the extra charge – definitions of general service charges and personal service charges considered – where a third category of charges found Retirement Villages Act 1999, ss 37, 76(a), 191, Dictionary Schedule Nolan v Kawana Island Retirement Village Pty Ltd [2009] QCCTRV 6 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Les Armstrong, agent |
| RESPONDENT: | Mr David Turner, solicitor |
REASONS FOR DECISION
Ms Fay Nielsen is a resident of the Runaway Bay Retirement Village. She leased her unit in November 2007. It is described as a Serviced Apartment. Since moving into her apartment, Ms Nielsen has been charged a “serviced apartment fee” as part of her unit’s general services charge. Ms Nielsen does not avail herself of the services associated with this fee and does not want to receive them. On this basis, Ms Nielsen says she should not have to pay the “serviced apartment fee” either.
Runaway Bay Village is operated by TriCare. TriCare explains that in the Village, there are two types of accommodation, Serviced Apartments and Independent Living Units. One of the differences between Independent Living Units and Serviced Apartments is that residents in Serviced Apartments have the option to receive a number of personal services such as meals and laundry, to assist them to remain living independently at an extra cost. These personal services are optional, at the request of the resident.
TriCare says the “serviced apartment fee” is a component of the general services charge associated with residing in the Serviced Apartments. TriCare goes on to say that although it is a component of the general services charge for Serviced Apartments it is a charge in addition to and separate from the general services charge.
The question to be determined in this matter is whether Ms Neilson is liable for this fee and on what basis she is liable. This involves an analysis of how to categorise this “serviced apartment fee”. Is it a general services charge, a personal services fee or something else?
The serviced apartment fee is levied on Serviced Apartments so that a resident can have the option to use services such as meals and laundry. If a resident does use these optional services, there will be a further charge for the particular services. For example, if a resident decides to use the meals service, this will incur an extra fee for the meal that is over and above the monthly serviced apartment fee.
So what does the serviced apartment fee cover? A letter from TriCare to Ms Nielsen dated 31 May 2011 identifies the components of TriCare’s serviced apartment fee. These components are listed as follows:
a) “Fixed costs of kitchen facility relating to serviced apartments (including staff costs)
b) Operating costs of commercial laundry relating to serviced apartments
c) Cleaning costs of resident laundries, storage bins rooms, shutes & serviced apartment hallways & foyers
d) Operating costs of resident laundries used by all serviced apartments residents
e) Supply of electricity and gas to serviced apartment building (including commercial laundry, kitchen, lower ground level car park, hallways & foyers etc)
f) Supply of electricity and gas to individual Serviced Apartments (for hot water etc)”.
Can this serviced apartment fee be categorised as a general services charge?
The Retirement Villages Act 1999 defines general services as services supplied or made available to all residents of a retirement village[1].
[1] Retirement Villages Act 1999, Schedule Dictionary.
Ms Nielsen’s lease with TriCare is dated 27 December 2007. TriCare’s Public Information Document also forms part of a resident’s contract[2] and one was provided to Ms Nielsen on 30 November 2007. At paragraph 1.3.10 of the Public Information Document under the heading “General Services Charge” it states:
[2] Retirement Villages Act 1999, s 37.
“General Services charges may include charges for individual services such as laundry, meals, cleaning accommodation units. Details about the general services charges are set out in Part 3 and Part 5 Chapter 2.”
On my reading of the Act’s definition of general services, these charges cannot include charges for individual services such as laundry, meals, cleaning accommodation units, unless available to every resident. This is clearly not the case in this Village and the Public Information Document is inconsistent with the Act in this clause.
[10]Clause 3.17 of TriCare’s same Public Information Document relating to General Service Charges specifically excludes charges for individual services. One of the examples given of this exclusion is personal laundry. This information is repeated at clause 5.2.1 onwards. Both of these further clauses are internally inconsistent with the earlier clause 1.3.10.
[11]On this definition, TriCare’s document listing the serviced apartment fee as a component of a general services charge is plainly wrong. This service is not available to all residents. This was conceded by TriCare at the hearing of this matter.
[12]If the serviced apartment fee is not a general services charge, is it a personal service fee?
[13]The Retirement Villages Act 1999 defines another form of service being personal services[3] which are optional services supplied or made available for the benefit, care or enjoyment of a resident of a retirement village.
[3] Retirement Villages Act 1999, Schedule Dictionary.
[14]The serviced apartment fee is, from TriCare’s perspective, compulsory. Just as it is not a general services charge (for the reason given above) neither is it a personal service fee because it is not, in TriCare’s view, optional for a resident of a Serviced Apartment.
[15]So what is it?
[16]A letter from TriCare to Ms Nielsen dated 19 November 2007 (predating the receipt by her of TriCare’s Public Information Document) advises that the monthly service fees payable for Ms Nielsen’s then proposed apartment (as at 1 July 2007) were a General Services Charge (comprising a base fee ($314.07); a serviced apartment fee ($317.43) a deficit contribution ($3.70)) and a maintenance reserve fund contribution ($94.22).
[17]I am satisfied that although inaccurately described as a general services charge, Ms Nielsen was aware of the financial imposts of signing a lease for a serviced apartment.
[18]At paragraph 3.22 of TriCare’s Public Information Document, under the heading “Other Fees”, the only other fee specifically referred to in this Public Information Document is the maintenance reserve fund contribution. The clause does not say no other fees will be charged.
[19]Can there be another category of fees that is neither a general services charge nor a personal services fee?
[20]Helpfully, this issue has been previously addressed in Nolan v Kawana Island Retirement Village Pty Ltd[4]. Here the then Commercial and Consumer Tribunal (the predecessor Tribunal to this Tribunal) found (having discussed both general and personal services) that there could exist a third category of service provided in the village, a service provided to an exclusive group of residents which is not a personal service and which is not a general service provided to the whole village and that there was nothing in the Retirement Villages Act 1999 or the Nolan Public Information Document preventing this[5].
[4] [2009] QCCTRV 6.
[5] Nolan v Kawana Island Retirement Village Pty Ltd [2009] QCCTRV 6 at paragraph 31.
[21]Having examined both of Ms Nielsen’s contract documents, I am satisfied that neither the lease agreement nor the Public Information Document provided to Ms Nielsen excludes a potential third category of fees.
[22]It appears that although Ms Nielsen does not currently use the personal services available to her (for example for meals or laundry), she does currently use some of the other components of this fee, for example, the supply of electricity and gas to her unit and electricity and cleaning fees in the building.
[23]TriCare argues that, although mis-described, ever since Ms Nielsen entered her lease, TriCare has charged her exactly what they indicated they would in their letter of 19 November 2007 (adjusted from time to time) and that the serviced apartment fee is a global fee for the provision of a number of services. It is only charged to residents of Serviced Apartments because it covers services either only provided to or only available to, residents of Serviced Apartments.
[24]Ms Nielsen argues that if it is not a general services charge (as is conceded) then, as it is listed under that heading in the Public Information Document, it must be struck down. At the hearing, Ms Nielsen did not concede that it may be a charge for a service under a third category as discussed in the Nolan decision. However, in written submissions provided after the hearing, Ms Nielsen did concede that a third category, as discussed in the Nolan decision, could exist but denied any liability for this fee.
[25]I am satisfied that this serviced apartment fee is an example of a fee which is properly described as a charge for a service under a third category as discussed in the Nolan decision.
[26]I have previously indicated in these reasons that I am satisfied Ms Nielsen was aware of the financial imposts of signing a lease for a serviced apartment. The Public Information Document under consideration in the Nolan decision listed “nil other fees” in the clause providing for additional fees or charges[6]. TriCare’s Public Information Document is distinguishable from the earlier matter because the equivalent clause in TriCare’s Document (clause 3.22) makes no such statement and in fact, lists one charge, the maintenance reserve fund contribution.
[6] At paragraph 39.
[27]I am also satisfied that TriCare’s Public Information Document, although mis-described, did sufficiently disclose to Ms Nielsen the contributions by way of charges that attached to Serviced Apartments[7]. Ms Nielsen being aware of these fees for the type of accommodation chosen by her and entering a lease on that basis, cannot now avoid paying the disclosed amounts.
[7] Retirement Villages Act 1999, s 76(a).
[28]This Tribunal is empowered to make orders that it considers to be just to resolve a retirement village issue[8]. If I am wrong concerning the inclusion of these charges in paragraph 3.22 of the TriCare’s Public Information Document, as addressed in the Nolan decision[9], the principles of unjust enrichment also apply in coming to a decision that is just (under section 191 of the Retirement Villages Act 1999) to resolve this issue. Section 191 does not confine the exercise of my discretion in coming to such a just decision[10].
[8] Retirement Villages Act 1999, s 191(1).
[9] At paragraph 40.
[10] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985) 162 CLR 24 at 39-42.
[29]Although the charges specific to utilities are not identifiable in the overall amount of the charge, in contracting with TriCare to lease a serviced apartment, Ms Nielsen has chosen this type of accommodation to have the flexibility and opportunity to avail herself of the individual personal services on offer as part of this type of accommodation in the future, albeit at a further specific fee for the particular service chosen. If Ms Nielsen had not wanted this extra opportunity, she could have chosen an Independent Living Unit – an accommodation arrangement without this extra service option.
[30]I am satisfied that Ms Nielsen is unjustly enriched if she does not pay for the supply of utilities she has used, both in her own unit and in the common areas of her building. Further I am satisfied that this principle of unjust enrichment applies where Ms Nielsen has the opportunity (whether she avails herself of it or not) to use a particular personal service but is not prepared to pay for the expense of providing the infrastructure necessary to support these potential services.
[31]For the above reasons, the application is dismissed.
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