Overton Investments v Carnegie

[2001] NSWSC 31

CITATION:	Overton Investments v Carnegie [2001] NSWSC 31
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	SC 4549 of 2000
HEARING DATE(S):	29 January 2001
JUDGMENT DATE:	8 February 2001
PARTIES :	Overton Investments Pty Ltd (Plaintiff) Neville John Carnegie (First Defendant) Residential Tribunal (Second Defendant)
JUDGMENT OF:	Windeyer J at 1

LOWER COURT JURISDICTION :	Residential Tribunal
LOWER COURT FILE NUMBER(S) :	99/28229
LOWER COURT JUDICIAL OFFICER :	Member H Edward Moore

COUNSEL :	Mr M Slattery QC with him Mr A McInerney (Plaintiff) Mr G Moore (First Defendant) Submitting Appearance (Second Defendant)
SOLICITORS:	Gadens (Plaintiff) Wendy Fisher (First Defendant) I V Knight (Second Defendant)
CATCHWORDS:	ADMINISTRATIVE LAW - RETIREMENT VILLAGES - application to Residential Tribunal after budget impasse - proceedings in Tribunal commenced when Retirement Villages Act 1989 in operation - whether maintainable after repeal of that Act - transitional provisions in Retirement Villages Act 1999 whether such provisions showed contrary intention to exclude operation of s30 of Interpretation Act 1987 - STATUTES - Interpretation - Interpretation Act 1987 s5(2) and s30 - whether contrary intention shown in Retirement Villages Act 1999 so as to exclude operation of s30 in respect of pending proceedings under repealed 1989 Act before Residential Tribunal. - STATUTES - Retirement Villages Act 1999 - repeal of Retirement Villages Act 1989 by s206 - effect on proceedings commenced in Residential Tribunal - STATUTES - Residential Tribunal Act 1998 - s6 - jurisdiction to determine applications pending under Retirement Villages Act 1989 at date of repeal of that Act
LEGISLATION CITED:	Acts Interpretation Act 1901 (Cth) s8 Interpretation Act 1987 s5(2), s30 Residential Tribunal Act 1998 s6, s6(2) Residential Tribunal Regulation 1999 Cl 13(1)(p), Cl 13(2) Retirement Industry Code of Practice Regulation 1995 Retirement Villages Act 1989 s14A Retirement Villages Act 1999 s115, s120, s206, s207, Sch 3 Cl 3.6[1], Sch 4 Cl 2, Cl 5 and Cl 8 Retirement Villages Regulation 1995
CASES CITED:	Esber v Commonwealth of Australia (1991-2) 174 CLR 430 Mathieson v Burton (1970-1) 124 CLR 1
DECISION:	Summons (being appeal from Residential Tribunal) dismissed with costs

1

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WINDEYER J

THURSDAY 8 FEBRUARY 2001

4549/00 OVERTON INVESTMENTS PTY LTD v NEVILLE JOHN CARNEGIE & ANOR

JUDGMENT

1    These proceedings involve a further stage in the epic dispute between the residents of the Heritage Retirement Village at Padstow Heights and Overton Investments Pty Ltd, the proprietor of that village at the relevant time.

The dispute

2 This dispute relates to a budget impasse in respect of the operating budget of the village for the financial year commencing 1 July 1999. Section 14A of the Retirement Villages Act 1989 provided that in the event of an impasse - where residents failed to agree to the proposed budget after all consultation processes under the applicable code had been exhausted - a resident might apply to the Residential Tenancies Tribunal for directions and determinations to resolve the impasse, including the approval of a fair and reasonable budget and a determination as to maximum fees to be charged to residents.

3 By application dated 6 August 1999, Mr Carnegie, the secretary of the residents' committee, applied to the Residential Tenancies Tribunal under s14A for such determinations and certain directions. Overton contended, inter alia, that there was no impasse and therefore no jurisdiction in the Tribunal. The Tribunal ruled against Overton, holding that there was an impasse and that it had jurisdiction. Overton then brought proceedings in the Administrative Law List of the Common Law Division No. 10754 of 2000 in the nature of prohibition pursuant to s60 of the Residential Tribunal Act 1998 claiming that the decision of the Tribunal as to jurisdiction was erroneous. Those proceedings were dismissed by Davies AJ by judgment and orders on 28 June 2000.

4    The Retirement Villages Act 1989 was repealed by s206 of the Retirement Villages Act 1999 which was assented to on 3 December 1999. The provisions of the Act relevant to these proceedings commenced on 1 July 2000.

5    When the matter returned to the Tribunal as a result of the decision of Davies AJ, Overton contended that the repeal of the Retirement Villages Act 1989 had brought an end to the jurisdiction of the Residential Tenancies Tribunal to hear the application. On 11 August 2000 the hearing was adjourned to 7 September 2000 to enable the parties to make written submissions on the question of jurisdiction. On 7 September 2000 the Tribunal made an interim determination on two questions as follows:

1. Whether the repeal of the Retirement Villages Act 1989 meant that the application under s14A of that Act could no longer be made and;

2. Whether the parties should continue to be legally represented.

The Tribunal determined that the application could be maintained and it withdrew its leave for legal representation.

6    On 5 October 2000 Overton filed a summons seeking orders setting aside the orders and determinations of 7 September 2000 and also for an interim stay. Some of the orders sought no longer have application. I granted leave to file an amended summons. In essence the proceedings are now an appeal from the decision as to jurisdiction and legal representation and for a permanent stay of the proceedings in the Residential Tenancies Tribunal.

Jurisdiction

7 Jurisdiction in the Tribunal in the event of a budget impasse was conferred by s14A of the Retirement Villages Act 1989 which was inserted into that Act by Clause 3 of Schedule 1 of the Retirement Villages Amendment Act 1998. As I have said, s206 of the Retirement Villages Act 1999 repealed the 1989 Act as from 1 July 2000. It also repealed the Retirement Villages Regulation 1995 and the Retirement Village Industry Code of Practice Regulation 1995.

8 Section 6 of the Residential Tribunal Act 1998, as in force on 30 June 2000, was as follows:

6. Residential Tribunal

(1) A Residential Tribunal of New South Wales is established by this Act.

(2) The Tribunal has and may exercise such functions as are conferred or imposed on it by or under this or any other Act or law.

Note . The following Acts confer jurisdiction on the Tribunal:
Community Land Management Act 1989
Residential Tenancies Act 1987
Retirement Villages Act 1989
Strata Schemes Management Act 1996

9 Schedule 3 of the Retirement Villages Act 1999 is headed "Consequential Amendments of Other Acts". Clause 3.6 contains the amendments to the Residential Tribunal Act 1998. Clause 3.6[1] is as follows:

SCHEDULE 3.6---Residential Tribunal Act 1998 No 168
[1] Section 6 Residential Tribunal

Omit " Retirement Villages Act 1989 " from the Note.
Insert instead " Retirement Villages Act 1999 ".

10 Section 207 of the Retirement Villages Act 1999 provides that Schedule 4 has effect, that Schedule containing the savings and transitional provisions. The relevant clauses are:

Part 2---Provisions consequent on enactment of this Act

2. Definitions

In this Part:

"Code of Practice" means the Retirement Village Industry Code of Practice prescribed by the Retirement Village Industry Code of Practice Regulation 1995 , as in force immediately before the repeal of that regulation.

5. Budgets and audited accounts given under Code of Practice

(1) For the purposes of section 20 of this Act:

(a) audited accounts provided in accordance with clause 40 of the Code of Practice are taken to be accounts audited as referred to in Division 6 of Part 7 of this Act, and
(b) draft budgets provided, and the final budgets developed, under clause 41 of the Code of Practice are taken to be statements of proposed expenditure and statements of approved expenditure, respectively.

(2) The draft budget provided, and final budget developed, under clause 41 of the Code of Practice for the financial year that is current on the commencement of Part 7 of this Act are also taken to be statements of proposed expenditure and statements of approved expenditure, respectively, for the purposes of that Part.

8. Termination of right of occupation

Any proceedings to terminate the right of occupation of a resident of a retirement village that were instituted under the former Act and not determined before the repeal of that Act are to be determined as if this Act had not been enacted.
Section 120 of the Retirement Villages Act 1999 is as follows:


120. Any surplus or deficit to be carried over

Any surplus or deficit in the annual accounts of a retirement village is to be carried forward to the next financial year, unless the residents of the village consent, by means of a special resolution:

(a) to the expenditure of the surplus, or

(b) to the making good of the deficit by way of a special additional payment from the residents,

as the case may be.

Arguments before and the decision of the Tribunal.

11 Overton argued before the Tribunal that there were no savings provisions in the 1999 Act which would preserve the application; that the savings provision in Clause 8 of Schedule 4 related only to pending proceedings for termination of a resident's right of occupation; and thus Parliament must have intended to exclude continuation of other proceedings. It followed that s30 of the Interpretation Act 1987 did not apply as a contrary intention could be found within the 1999 Act and the transitional provisions. It was further argued before the Tribunal that s14A of the 1989 Act did not involve any accrued right within the meaning of s30 of the Interpretation Act. That argument was not pursued in the proceedings before me, and I consider that the decision not to do so was correct. As to these matters, the decision of the Tribunal was as follows:

HAS THE INTERPRETATION ACT BEEN EXCLUDED?

The relevant provisions of the Interpretation Act are:

5. Application of Act

(2) This Act applies to an Act or instrument except in so far as the contrary intention appears in this Act or in the Act or instrument concerned
And:

30. Effect of amendment or repeal of Acts and statutory rules

(1) The amendment or repeal of an Act or statutory rule does not:


(a) revive anything not in force or existing at the time at which the amendment or repeal takes effect, or

(b) affect the previous operation of the Act or statutory rule or anything duly suffered, done or commenced under the Act or statutory rule, or

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule, or

(d) affect any penalty incurred in respect of any offence arising under the Act or statutory rule, or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability or penalty,

and any such penalty may be imposed and enforced, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, as if the Act or statutory rule had not been amended or repealed.

The respondent argues that the absence of any saving of pending applications under section 14A makes plain Parliament's intention for section 30 not to apply in such circumstances. It is true that there are no savings provisions in the 1999 Act except for those contained in clause 8 of Schedule 4. These deal only with pending actions for termination of a resident's occupation. However, the failure to make any other provision does not necessarily mean that other proceedings pending under the 1989 Act were intended to be abrogated. As Justice Windeyer said in Mathieson v Burton 124 CLR 1 at p. 8:
"And this is another instance of legislatures amending statute law without expressly either saving or abrogating the consequences of prior events. Today draftsmen do not ordinarily insert saving clauses in bills. When a statute repeals an earlier enactment, the general provisions of the Interpretation Acts are assumed to be sufficient to limit the operation of the new Act and to prevent the disturbance of past transactions and accrued rights."
Further, the mere inclusion of certain savings provisions in the 1999 Act is not sufficient to displace the savings provisions of the Interpretation Act. In Gerrard & Anor v Mayne Nickless 135 ALR 494 (and other related proceedings not cited) appears the following passage from the joint judgment of Wilcox CJ, Ryan and Marshall JJ in the Full Court of the Industrial Relations Court of Australia dealing with the corresponding Commonwealth provision to section 30 of the Interpretation Act:
"Counsel for Mayne Nickless submits that s 8 of the Acts Interpretation Act does not apply to the present case because Parliament evinced a contrary intention. They point out that the Reform Act contains transitional provisions in respect of many topics, but not in relation to the amendments made to ss 127A and 127B. They say this must be because parliament intended that rights given under the earlier form of the section should not survive the amendments.
We do not accept this submission. It seems to us that the more likely explanation of the absence of transitional provisions is that parliament relied on s.8 of the Acts Interpretation Act to protect parties to pending applications."
The Full Court went on to note that appeals from decisions or orders of a member of the Industrial Relations Commission under the amending Act were saved. This made it "unlikely in the extreme" that parliament would have intended that a hearing almost completed before the Commission "should not survive the amendments."
The enquiry is as to whether Parliament has expressed a contrary intention in the amending legislation to the continuation of the pending proceedings. There must be a clearly expressed intention to this effect see NSW Aboriginal Land Council v Minister administering the Crown Lands (Consolidation) Act and the Western Lands Act 1988 14 NSWLR per Hope JA at p 695. This may be demonstrated by the amending Act being:
"… so comprehensive in relation to pending proceedings … as to compel the conclusion that they were intended to deal exhaustively with that topic, thereby excluding the possibility that s 8 of the Acts Interpretation Act was to have an independent or additional application in connection with such proceedings" per Mason J (as he then was) Yule v Junek 18 ALR 509 at p 519.

In applying this test I do not find that the savings and transitional provisions in the 1999 Act exclude the operation of section 30 of the Interpretation Act. Clause 8 of Schedule 4 to the 1999 Act is not comprehensive in dealing with pending proceedings under the 1989 Act. The Schedule saves pending proceedings under the 1989 Act for termination of the resident's right of occupation. A right to occupy premises within a retirement village entered into prior to the commencement of the 1999 Act, is stipulated to continue until it is terminated under the 1999 Act. Under section 131 of the 1999 Act an application for termination of a right of occupation must be preceded by a notice of intention to terminate in a form prescribed in Schedule 10. The 1999 Act expands the grounds and alters the procedure for terminating a resident's rights of occupation. An application for termination of that right under the 1989 Act would be inconsistent with such an application under the 1999 Act. This cannot be said to be the case in respect of an application as to a budget impasse under section 14A of the 1989 Act for the year ending 30 June 2000. The provisions as to the financial management of a village are contained in Part 7 of the 1999 Act. By virtue of Clause 5 of Schedule 4 these provisions only apply to draft and final budgets developed under the former Code of Practice for the financial year commencing 1 July 2000. I cannot accept that Parliament intended that the 1999 Act would prevent an application relating to a budget impasse for the 1999-2000 year being continued under the 1989 Act whilst enabling such an application to be made to the Tribunal under section 115 of the 1999 Act for the following year. As the present application is not inconsistent with the provisions or scheme of the 1999 Act, I find that section 30 of the Interpretation Act is not excluded.

12    Senior counsel for the plaintiff mounted his attack on the decision on two fronts, which to some extent overlap. They are best described as the "jurisdiction" and "contrary intention" arguments. I will discuss them in that order.

Jurisdiction

13 The argument as to jurisdiction was that the amendment to the note to s6 of the Residential Tribunal Act, brought about by Clause 3.6[1] of Schedule 3 of the 1999 Act, removed the statutory jurisdiction of the tribunal under the 1989 Act. Counsel argued, probably correctly, that this matter was not considered by the Tribunal, at least in its decision. Whether or not it was argued before the Tribunal I do not know. The note to s6 is part of the Act as printed. Nevertheless the note does not determine the jurisdiction given by s6(2) of the Act. If jurisdiction to decide matters commenced under the Retirement Villages Act 1989 is preserved by s30 of the Interpretation Act or by transitional provisions in the 1999 Act, then that jurisdiction exists despite the note. So would jurisdiction given under any other Act not referred to in the note. It may be relevant to contrary intention but it cannot separately exclude jurisdiction. In any event Clause 8 of Schedule 4 is contrary to this argument. After writing this part of the judgment I became aware of s10 of the 1999 Act which provides that "notes included in this Act are explanatory notes and do not form part of this Act". Counsel did not refer to this but it determines the argument on jurisdiction as a separate matter.

Contrary Intention

14 Mr Slattery QC pointed to three main indicators of a contrary intention within s5(2) of the Interpretation Act. These were: (1) Clause 3.6[1] of Schedule 3; (2) Clause 8 of Schedule 4; (3) Section 120 of the 1999 Act. The Tribunal did not deal with the first and third of these matters. On the second matter I consider the Tribunal was correct for the reasons given if the matter is taken alone. For the reasons given under jurisdiction, I do not consider that the argument about the note to s6 of the Residential Tribunal Act has any substance. I would have thought it logical for that note to be amended in accordance with the 1999 Act without regard to transitional provisions and without regard to s30 of the Interpretation Act. The argument of Mr Slattery QC based on s120 of the 1999 Act was that an unresolved deficit could be included for consideration under the new Act. It does not seem to me that s120 has anything to do with the question of some unresolved dispute as to a draft budget for a particular year. Section 120 relates to actual surpluses or actual deficits in the annual accounts which are required to be carried forward in the absence of the special resolution referred to in that section. I do not understand that there is any way in which s120 and Clause 5 of Schedule 4 of the 1999 Act when read together might indicate a contrary intention. It may be because Part 7 of the 1999 Act came into force only 1 July 2000 that there will be some gap so far as a draft budget for the year commencing 1 July 2000 is concerned, but that is another matter. One can only hope - without much confidence - that good sense might prevail. In fact it seems that the existence of Clause 5 of Schedule 4 is contrary to the argument of Counsel that s120 could bring about a second determination which is clearly not the case.

15    It is proper to make clear that Mr Slattery argued that the cases relied upon by the Tribunal and the case of Esber v Commonwealth of Australia (1991-2) 174 CLR 430, relied upon by the residents, lack the indications of contrary intention which he has put forward in this case. It is true that in Esber the transitional provision supported the application of s8 of the Acts Interpretation Act 1901 (Cth) (the equivalent of s30 of the Interpretation Act 1987) and that the case, was in any event more relevant to the argument on "right" which was not pressed. It is also true that the statement in Mathieson was a general one with no attention given to indication of contrary intention. The important matter to be considered in the present case however is that there was a reason to state clearly whether applications for termination of residence contracts pending on 1 July 2000 should continue under the 1989 provisions or be subject to the 1999 provisions. This was because terminations could be ordered under the 1999 Act as a result of occurrences prior to 1 July 2000. There was no such need in relation to budget disputes in the tribunal as the 1999 Act was only concerned with disputes arising from failure to consent to itemised statements of proposed expenditure which were not required until Part 7 of the 1999 Act came into force. Here the transitional provisions introduced the 1995 code procedures into s115 of the new Act so that the new Act could operate successfully from commencement. There was a reason for the special provisions; but there was also good reason to rely on s30 of the Interpretation Act for other proceedings pending before the tribunal which could only operate so as to determine obligations arising in respect of expenditure up to the commencement of the 1999 Act. Whether or not the legislature even considered this one does not know. What it did not do is to indicate a contrary intention under s5(2) of the Interpretation Act so as to exclude the operation of s30 of that Act.

Legal representation

16    The Residential Tribunal Regulation 1999 provides that a party to a matter before the tribunal is not entitled to be represented except in certain circumstances. The only circumstance applicable in this case would be Clause 13(1)(p) which provides that representation may be allowed in any other case (namely those not specified in (a) to (o)) approved by the tribunal but goes on to provide in clause 13(2) that approval is not to be given under (p) unless the tribunal is satisfied that the representation should be permitted as a matter of necessity due to the likelihood of complex issues of law or fact arising in the proceedings or because the party seeking representation would otherwise be placed at a disadvantage.

17    This is of course a discretionary decision of the Tribunal and the normal difficulties of a person seeking to upset that decision are in the path of Overton, which was appreciated by its counsel. There is nothing to indicate that the decision of the Tribunal was flawed. There is no evidence of what was before the Tribunal other than the application, although it was accepted the Tribunal was told that a previous reference relating to disputed budget items, took seventeen days before the referee. That in no way indicates that the present dispute should take anything like that time. There was no evidence before me to indicate the nature of the dispute. This ground of appeal is not made out.

18    The result of this is that the summons should be dismissed with costs.

Last Modified: 02/23/2001