Noon v Bondi Beach Astra Retirement Village Pty Ltd

The dispute in *Noon v Bondi Beach Astra Retirement Village Pty Ltd* concerned the enforceability of a "buy-back" provision within a contract for the sale of a home unit in a retirement village. The purchasers, the Noon appellants, sought to have the provision declared void. The vendor was Bondi Beach Astra Retirement Village Pty Ltd, and the service company, Astra Retirement Villages Pty Ltd, was not a party to the contract but purported to exercise the buy-back option. The case was heard in the Court of Appeal of New South Wales.

The Court of Appeal was required to determine several key legal issues. Firstly, whether the contract of sale, which granted the purchaser fee simple of the home unit upon completion, constituted a "Residence Contract" under the *Retirement Villages Act 1989* (NSW). Secondly, the court had to consider whether a provision naming a non-party (the service company) as having a right to "buy back" the unit could be construed as a mistaken reference to a grant to a party to the contract, and if so, whether that option was enforceable. Thirdly, the court examined whether the buy-back provision was affected by section 66ZG of the *Conveyancing Act 1919* (NSW), and whether it was void as a restraint on alienation. Finally, the court considered whether the conduct of the parties gave rise to a conventional estoppel in favour of the service company.

By majority, the Court of Appeal held that the contract was not a "Residence Contract" under the *Retirement Villages Act 1989*. The majority also found that the buy-back option, as drafted, was not enforceable by the service company, even if it were considered an agent for the vendor, and that the option had not been validly exercised. Furthermore, the majority determined that the provision was indeed affected by section 66ZG of the *Conveyancing Act 1919*, although it was not void as a restraint on alienation. The court also found that no conventional estoppel arose, as the alleged representations predated the binding contract and were too vague.

Consequently, the appeal was allowed, and the orders of the trial judge were set aside. The proceedings were dismissed, and the respondents were ordered to pay the appellants' costs of both the trial and the appeal.