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shown in Retirement Villages Act 1999 so as to exclude operation of s30 in respect of pending proceedings under repealed 1989 Act before Residential Tribunal.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

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…

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: [2001] NSWSC 31
Decision Date: 8 February 2001

CaseChat Overview and Summary

In the case of Overton Investments v Carnegie, the dispute arose in the context of administrative law and retirement villages. The case involved a challenge to proceedings that had been initiated in the Residential Tribunal following a budget impasse. The Retirement Villages Act 1989 was in effect when these proceedings were commenced. The primary issue before the court was whether these proceedings could continue after the repeal of the 1989 Act. The court had to determine if the transitional provisions in the Retirement Villages Act 1999 indicated an intention to exclude the operation of section 30 of the Interpretation Act 1987.

The court examined the transitional provisions in the 1999 Act to ascertain if they demonstrated an intention contrary to the application of section 30 of the Interpretation Act 1987. Section 5(2) and section 30 of the Interpretation Act 1987 were central to the analysis. The court needed to determine whether these transitional provisions in the 1999 Act effectively precluded the application of section 30 in relation to the ongoing proceedings under the repealed 1989 Act. The repeal of the Retirement Villages Act 1989 by section 206 of the 1999 Act further complicated the matter, requiring the court to assess its impact on the proceedings that had been initiated in the Residential Tribunal.

The court concluded that the transitional provisions in the 1999 Act did not show a contrary intention to exclude the operation of section 30 of the Interpretation Act 1987. Consequently, the proceedings initiated under the repealed 1989 Act were maintainable under the jurisdiction provided by section 6 of the Residential Tribunal Act 1998. The court's decision ensured that the proceedings could continue, upholding the rights and obligations of the parties as established under the repealed Act.

Orders