Pidgeon v Milstern Retirement Services Pty Ltd
[2012] QCAT 588
•19 November 2012
| CITATION: | Pidgeon & Ors v Milstern Retirement Services Pty Ltd [2012] QCAT 588 |
| PARTIES: | Stanley Pidgeon (as executor of the estate of John William Shepherd, deceased) Olive Gannon (as executix of the estate of John Gannon, deceased) Olive Gannon Sylvia Bruse Ernst Bruce Joan Cleasby (Applicants) |
| v | |
| Milstern Retirement Services Pty Ltd (Respondent) |
| APPLICATION NUMBER: | VH009-09 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr J R Forbes, Member |
| DELIVERED ON: | 19 November 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | [1] The Application filed on 4 September 2009 is dismissed for want of jurisdiction. |
| CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – JURISDICTION – where the applicants applied under the Retirement Villages Act 1999 to prevent the respondent from renting to ordinary residents – where respondent claims they were not the scheme operator – whether matter is a retirement village issue – whether tenancies under Residential Tenancies and Rooming Accommodation Act 2008 are permissible in retirement village – whether Tribunal has jurisdiction to deal with the matter under the Retirement Villages Act 1999 Queensland Civil and Administrative Tribunal Act 2009, ss 3, 32 Carr v Western Australia (2007) 232 CLR 138 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
There is a long-held, if not unwavering belief that the judicature acts of the late 19th century laid the ghost of Charles Dickens’ Jarndyce v Jarndyce[1] to rest. However, Jarndyce may still haunt litigation under the Retirement Villages Act 1999 (“the RVA”). When these proceedings began in August 2009 there were 14 Applicants. Sadly, but inevitably, age has wearied many of them; there are now only 6, two as representatives of deceased estates. The Tribunal’s RVA jurisdiction, in particular, calls for the expedition enjoined by the QCAT Act.[2]
[1] A fictional court case in the novel ‘Bleak House’ by Charles Dickens.
[2] Section 3(b).
The Applicants are residents of “Urimbirra” Retirement Village, Hervey Bay (“the Village”). The Village was originally owned and operated by B + B Retirement Holdings Pty Ltd. In July 1994, as certified by the Office of Fair Trading,[3] the name of the owner was changed to Milstern Retirement Village Pty Ltd, with Milstern Retirement Services Pty Ltd as manager. Subsequently Milstern Retirement Village became Milstern Retirement Living, and as at 28 July 2010, one year after these proceedings began, the latter company was the registered proprietor in fee simple of the land upon which the Village stands.[4]
[3] Letter Office of Fair Trading to Butler McDermott Lawyers 16 July 2010.
[4] Title search report, Environment and Resource Management, 28 July 2010.
The RVA defines a “retirement village” as “premises where older members of the community or retired persons reside, or are to reside, in independent living units or serviced units, under a retirement village scheme”.[5] The characteristics of a “retirement village scheme” are rights of residence granted in return for an “ingoing contribution” and further charges for a right to receive a service or services in relation to the retirement village”.[6] In this case those “services” include a bus for periodic shopping trips, an emergency call service, a swimming pool and a library/recreation room.
[5] Retirement Villages Act 1999, s 5.
[6] Retirement Villages Act 1999, s 7.
The owner of the Village is Milstern Retirement Living Pty Ltd (“the Owner”) and the Village is managed by Milstern Retirement Services Pty Ltd (“the Manager”). The proceedings were brought, and have been continued against the Manager only, although in its Response the Manager pleaded:
[We are] only the manager whereas Milstern Retirement Living Pty Ltd ... is the owner of the land and the scheme operator. ... [T]he rent is received for Milstern Retirement Living Pty Ltd.[7]
[7] Filed 29 July 2010 Schedule “A”, paragraphs 3 and 7.
The Applicants complain that the Respondent (that is the Manager) has progressively bought back a large majority of the 49 units in the Village and rents them to people (“Ordinary Tenants”) under the Residential Tenancies and Rooming Accommodation Act 2008 (“RTRA Act”). The Ordinary Tenants are not “residents” within the meaning of the RVA.[8] They say that, in this way, Milstern is devaluing, or has devalued their residence contracts. They also complain that the ordinary tenants are unfairly enjoying certain benefits at the expense of the Applicants. No particulars of the alleged devaluation are supplied. There is no evidence that the Applicants have ceased to enjoy the legal protection of the RVA, or the facilities to which their residence contracts entitle them. There is no consideration of the state to which the village might be reduced if many units, unable to be let under the RVA, simply stood vacant.
[8] Retirement Villages Act 1999, s 9.
The Applicants seek an order prohibiting the Manager from permitting occupation of any unit in the Village, other than in accordance with the RVA. According to the Respondent, the application should be dismissed for want of jurisdiction.
The Applicants’ claim faces several difficulties, which I shall now consider.
Is this a retirement village dispute?
Section 209 of the RVA authorises QCAT to hear “retirement village issues”. Materially, a “retirement village issue” includes a “retirement village dispute”.[9] A “retirement village dispute” is “a dispute between a scheme operator and a resident of a retirement village about the parties' rights and obligations under the resident's residence contract or this Act.”[10]
[9] Retirement Villages Act 1999, s 22.
[10]Retirement Villages Act 1999, s 21(1). A group of residents may make an application together about a matter arising from the same or similar facts or circumstances, see Retirement Villages Act 1999, s 173.
But the Applicants have not brought these proceedings against the scheme operator. Instead, their chosen Respondent is the operator’s agent, the Manager, although it is common ground that the Owner, not the Manager, is the operator of the Village.[11] It follows that this matter is neither a retirement village issue, nor a retirement village dispute – the types of action that the RVA assigns to the Tribunal. It is unnecessary to consider whether the Applicants’ position might have been improved by joining or substituting the Owner as respondent. An application for that purpose was filed on 30 July 2010, but for some reason that is not apparent, it was taken no further.
[11]Statement of John William Sheppard (on behalf of the then Applicants) dated 28 July 2010, paragraph 26; Submissions of the Respondent on jurisdiction, undated, paragraph 2; draft lease submitted by Milstern to Commercial and Consumer Tribunal 19 November 2009 clause 1 “scheme operator”.
Rights of the Ordinary Tenants
[10]Inevitably the order sought against the Manager, if granted, would have the effect of invalidating the tenures of the Ordinary Tenants. The making of such an order, in the absence of those tenants as parties, would be contrary to every principle of due process or natural justice. Manifestly the Ordinary Tenants are not parties, but even if they were, the Tribunal would have no jurisdiction under the RVA to determine issues between them and the Applicants. No issue is joined between the Applicants and the operator of the scheme.
Is the RVA compatible with leases under the Residential Tenancies and Rooming Accommodation Act 2008 (“the RTRA Act”)?
[11]In view of the preceding observations, an answer to this question is not strictly necessary. However, it seems to me that the Respondent’s submissions on this point are correct. The RVA is a remedial measure for the protection of elderly residents of retirement villages. It is not immediately apparent that they require protection from tenants with less, or different rights than those conferred by residence contracts, as defined by the RVA. In any event, if the RVA ever prohibited other forms of residence rights, the prohibition was impliedly repealed by the RTRA Act. Section 34 of the RTRA Act clearly contemplates that a residential tenancy, within the meaning of that Act, may be created in, and coexist with, arrangements under the RVA. I am not persuaded by the Applicants’ contention that the objects and definitions of the RVA should be read to be exclusive of any residential tenancies legislation and if not read this way, unfairness to RVA tenants may or will occur. Part of the rents paid by the Ordinary Tenants are devoted to the Village funds,[12] and there is no evidence that this allocation is insufficient to achieve equity between the RVA residents and others. “Legislation rarely pursues a single purpose at all costs.”[13]
[12] Applicants’ submissions 28 September 2012 page 3 item (h).
[13]Carr v Western Australia (2007) 232 CLR 138 at 143 per Gleeson CJ; Jomal Pty Ltd v Commercial and Consumer Tribunal [2009] QCA 326 at [29].
Conclusion
[12]For all or any one of the reasons given in paragraphs [9], [10] and [11] above, I hold that these proceedings are not within the jurisdiction of the Tribunal, and must therefore be dismissed. There will be no order as to costs.
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