Richards v Tricare (Aspley) Limited - [2024] QCAT 422

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Richards v Tricare (Aspley) Limited [2024] QCAT 422

DOREEN RICHARDS BY HER ATTORNEY

(applicant)

v

TRICARE (ASPLEY) LIMITED

(respondent)

APPLICATION NO/S:

OCL079-22

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

10 September 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Sammon

ORDERS:

The Applicant’s application is dismissed.

CATCHWORDS:

CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – application for orders by resident under the Retirement Villages Act 1999 (Qld) – application for orders that scheme operator reinstate 24 hours per day, seven days per week in-house staff emergency on-call service – application for order that scheme operator refund the whole of the lease purchase price paid by an exiting resident – application dismissed

Housing Legislation (Building Better Futures) Amendment Act 2017 (Qld)

Queensland Civil and Administrative Tribunal Act2009 (Qld), s 100, s 102

Retirement Villages Act 1999 (Qld), s 8, s 9, s 10, s 13, s 16, s 21, s 22, s 37 (prior to amendment), s 45, s 74, s 75, s 84, s 191, s 237H, s 237I, Dictionary (the schedule)

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)

REASONS FOR DECISION

Background

The Applicant Mrs Richards is a resident of the Compton Gardens Retirement Community located at Albany Creek Road, Aspley, which is described by both parties as ‘Katandra'. She seeks orders from the Tribunal against the Respondent (‘Tricare’), which is the operator of Katandra.
It is common ground between the parties that the Retirement Villages Act 1999 (Qld) (‘the Act’) applies to Tricare in its operation of Katandra. Whilst that Act imposes rights and obligations on a ‘resident’[1] of a retirement village and on a ‘retirement village scheme operator’[2] (in this case, Tricare), the Act does not regulate all aspects of the operation of a retirement village. Much is left to the scope of a ‘residence contract’[3] about residence in a retirement village, entered into between a person and the scheme operator.
[1]Defined in s 9 of the Act.
[2]Defined in s 8 of the Act.
[3]In summary, defined in s 10(1) of the Act to be one or more written contracts about residence in a retirement village entered into between a person and the scheme operator.
When this matter commenced in the Tribunal with the filing of an ‘Application for a tribunal hearing under the Retirement Villages Act’ (‘the Application’), on 29 November 2022, there were a total of six applicants seeking orders against Tricare. Since then, the applicants other than Mrs Richards have all died, or moved out of Katandra. One applicant, Joan Eileen Perkins, died as recently as 28 July 2024, leaving Mrs Richards as the only applicant.
The Tribunal has the jurisdiction to hear and determine a ‘retirement village issue’, as described in part 11 of the Act. The expression ‘retirement village issue’ is defined in s 22(a), which is relevantly for the purposes of this case, a ‘retirement village dispute’. That term is relevantly defined in s 21(1) of the Act to be:
… 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.
Under s 191 of the Act, the Tribunal may make ‘the orders the tribunal considers to be just to resolve a retirement village issue’. Section 191(2) gives examples of the orders the Tribunal may make, including, relevantly:
(a) an order for a party to the issue to do, or not to do, anything (an enforcement order);
(b) an order requiring a party to the issue to pay an amount (including an amount of compensation) to a specified person (a payment order).

Grounds for the application, and issues

The Application filed on behalf of Mrs Richards specified three ‘causes of action’ against Tricare:
(a)breach of contract, on the basis of Tricare failing or refusing to perform ‘General Services’[4] under the residence contract;
(b)breach of the Act by failing or refusing to perform the General Services under the scope of services of the residence contract and by misleading residents about an increase in fees;
(c)negligence, by removal of staff being available in Katandra to provide emergency services on the basis of availability 24 hours a day, seven days a week.
[4]This is an apparent reference to the expression ‘general services’ defined in the Dictionary (the schedule) of the Act to mean ‘services supplied, or made available, to all residents of a retirement village’.
By the time the matter had reached the stage of final submissions, ‘cause of action’ (b) had resolved, and Mrs Richards[5] sought orders that:
(1)    The Respondent forthwith reinstate the 24/7 in-house staff emergency on- call service or install a full-time caretaker at Katandra ... and continue to provide that service in compliance with the Residents’ Residence Contract.
(2)    Within 30 days of the date of a Resident’s exit from Katandra, where that Resident chooses to exit the Katandra facility or must exit the Katandra facility for health or other reasons, the Respondent refund the whole of the lease purchase price paid by the exiting Resident.
(3)    Interest and Costs.
[5]Written submissions dated 15 April 2024. At this time, Mrs Perkins was still alive, and an applicant in the proceeding.
In the written submissions filed on behalf of Tricare,[6] it opposed the making of each of those orders. Those then, are the issues for determination in this matter.
[6]Filed 13 May 2024.

The contractual basis for Mrs Richards’ rights

The ‘package’ of ‘relevant information documents’, some of which were required to be provided by Tricare, as scheme operator to Mrs Richards,[7] relevantly consisted of the following:
(a)the ‘Village Comparison Document’;[8]
(b)the ‘Prospective Costs Document’;[9]
(c)a draft lease by Mrs Richards from Tricare of the land for the accommodation unit to be occupied by Mrs Richards;
(d)an application by Mrs Richards to acquire preference shares in the company which is Tricare (Aspley) Limited;
(e)chapter 12 (‘Preference Shareholder provisions’) of the Constitution of Tricare (Aspley) Limited as the scheme operator.
[7]Under s 84 of the Act.
[8]Under s 74 of the Act, the purpose of which in relevant summary, is to give general information about a retirement village scheme to potential residents including information about the available types of services.
[9]Required under s 75 of the Act, the purpose of which is to give a prospective resident a summary of the estimated costs of moving into, living in and leaving the retirement village.
Mrs Richards and Tricare subsequently executed the lease (the ‘Lease’) on 23 July 2021, a copy of which is attached to the written submissions made on behalf of Tricare, as Annexure D1. As well as the right to occupy the leased area (which is the basic legal requirement of any lease), the Lease also makes provision, relevantly, for:
(a)obligations on Mrs Richards as the ‘Resident’[10] to do a range of things, for example, under clause 15(a) to keep the Unit in as nearly as possible to its condition as at the date of commencement of the Lease, but also to refrain from doing certain things, as described in clause 16, for example, to use the Unit other than as a place of residence;
(b)obligations on Tricare to provide the ‘Services’, a term defined in clause 1 of the Lease relevantly to mean the ‘General Services’, a term also defined in clause 1, to mean the services supplied to all residents of the Retirement Village, details of which are contained in Schedule 1 of the Lease, clause 1.1;
(c)an obligation under clause 7 for Mrs Richards to, on the signing of the Lease, pay a ‘Lease Purchase Price’ of $1,000, and, under clause 8, for Mrs Richards, in the event of the Lease being terminated, other than by Mrs Richards’ default, to be entitled to a refund of the Lease Purchase Price, as the holder of the ‘Relevant Preference Shares’, in accordance with the Tricare Constitution.
[10]A term defined in clause 1 of the Lease to mean the person described in item 3 of the Form 7 Lease, in this case, Mrs Richards.
I will analyse the relevant rights and obligations under the Lease in detail below. However, to this point, given the rights and obligations contained in the Lease, in my opinion, it is a ‘residence contract’ as defined in s 10 of the Act.

First issue - reinstatement of 24/7 in-house staff emergency on-call service

According to Mrs Richards’ submissions,[11] what had previously been a 24/7 in-house staff emergency on-call service was phased out at Katandra over a matter of weeks until the service ceased completely on or about 15 August 2022. Mrs Richards’ submissions[12] were that after that, each resident would be required to enter into a new contract directly with a service provider for a 24/7 personal alarm system called 'ROSIE' which comprised a medical alert pendant and ‘telephone’ to contact the service in the event of an emergency.
[11]Paragraph 20.
[12]Paragraph 15.
Mrs Richard's submissions contend that Tricare remains under a legal obligation to provide a 24/7 in-house staff emergency on-call service. The written submissions filed on behalf of Tricare deny that there is a legal obligation to do so.
When the written submissions on behalf of the then Applicants were filed on 19 April 2024, Mrs Perkins was still alive, and one of the Applicants. Much of the submissions on this first issue were directed towards the residence contract applying to Mrs Perkins.
The April written submissions refer to a ‘Public Information Document’ attached to those submissions and provided by Tricare to Mrs Perkins on 11 February 2010. At that time, under a previous version of the Act, a ‘public information document’ had particular legal meaning. The term was defined in s 13 of the Act to be a document in the approved form under s 74, giving details about the retirement village scheme concerned. A scheme operator was required to give a prospective resident a copy of the public information document before the prospective resident entered into a residence contract for the village.[13] The public information document was taken under the then Act to form part of the resident’s residence contract.[14] If there was an inconsistency between the public information document and any other part of the residence document, the provision which was more beneficial to the resident prevailed.[15]
[13]Under s 84(1) of the then Act.
[14]Section 37(1).
[15]Section 37(3).
The requirements for a scheme operator to give a prospective resident a copy of the public information document, and for that document to form part of the resident’s residence contract were omitted from the Act by the Housing Legislation (Building Better Futures) Amendment Act 2017 (Qld). However, there are transitional provisions[16] contained in the current version of the Act that continue the effect of a public information document which was in existence immediately before the commencement of the amendment provisions, in a residence contract.
[16]Section 237H read with s 237I.
Speaking in respect of Mrs Perkins, the April submissions refer to the ‘Public Information Document’ provided to Mrs Perkins and in particular, in clause 3.17, under the heading ‘General Services Charge’, the document states that the general services ‘provided with your accommodation unit include’:
·Staffing costs (24 hours a day, 7 days a week);
·24-hour emergency call service.
If Mrs Perkins was still alive, and an applicant in this proceeding, I would find that the bullet points just quoted impose an obligation for Tricare to have available at Katandra, a 24-hours a day, seven days a week, staffing presence at the village. That must be so, or the expression ‘24 hours a day, 7 days a week’ is meaningless. That does not mean that Tricare was required to have the staffing presence provide the 24-hour emergency call service, although of course, Tricare could achieve that obligation through the 24 hour a day, seven days a week staffing presence. In my interpretation, Tricare could provide the 24-hour emergency call service in another way, such as the 'ROSIE' service, provided that it operated on a 24 hour a day basis.
However, Mrs Perkins is no longer an applicant, and I must direct attention to the contractual obligations which apply to Mrs Richards.
The ‘General Services’ contained in Schedule 1 of the Lease, relevantly include in the services to be provided to Mrs Richards:
·Staffing costs
·Costs of management and administration
·24 hours emergency call service.
In contrast to the residence contract which applied to Mrs Perkins, I do not interpret those services to include a requirement for there to be a 24 hours per day, seven days per week on-site staff presence at Katandra.
The Village Comparison Document which Tricare was required to provide to Mrs Richards as a potential resident of Katandra in Part 7 (Services), clause 7.1 also describes the relevant ‘General Services’ in terms identical to the bullet points quoted above from Schedule 1 of the Lease. Unlike the ‘Public Information Document’ which was, under the earlier version of the Act, made part of the residence contract, the Village Comparison Document did not, by force of the Act, become part of the residence contract for Mrs Richards.
In conclusion on this first issue, I find that Tricare owed no obligation to Mrs Richards to provide a 24 hours per day, seven days per week on-site staff present at Katandra. Tricare fulfilled its legal obligation under the residence contract by providing the 24 hours emergency call service, in the form of the ‘ROSIE' service. I dismiss Mrs Richards’ application on this issue.

Second issue - claim that Tricare must refund the whole of the Lease Purchase Price paid by the exiting resident

Overall approach

The parties are in dispute about the correct meaning and application of the residence contract, concerning the entitlements of a resident who terminates the residence contract.
Starting with the written submissions filed on behalf of Tricare, at paragraph 10, Tricare submits that the ‘whole of the lease purchase price is only $1000 in the case of each of the [then] Applicants.’, without conceding that the amount was payable to either of the then Applicants. In addition, Tricare submitted that Mrs Perkins was entitled to a ‘capital gain’, meaning it would be in her interests to have more than simply the ‘lease purchase price’.
However, Tricare also submitted that it anticipated:
that the [then] applicants actually intended to request the whole of the price paid for the preference shares and lease without deduction of any type and without derogating from any entitlements payable to them under the terms of either the lease or the constitution [for Tricare].
The written submissions in reply on behalf of the then Applicants[17] confirm that approach and submit that the order sought was:
‘… generic’ and seeks a ‘... refund the whole of the lease purchase price paid by the existing resident ...’, being a combination of the lease pricing to raise and register the lease in the sum of $1,000, plus the value of the contribution paid by the resident for the lease.
[17]Filed 28 May 2024.
That is a reference to the final orders sought in the written submissions made on behalf of the then Applicants filed on 15 April 2024. Given the mutual understanding by the parties on this issue, I will proceed to consider the issue as set out above.

Relevant contractual documents

It is necessary to examine and analyse the relevant documents for the residence contract which describe the entitlements of a resident who terminates the residence contract.
Included in the documents attached to Tricare’s written submissions, in annexure D1, being documents concerning Mrs Richards, are several documents included in the ‘Disclosure Documents’ provided by Tricare to Mrs Richards that concern her becoming the holder of ‘Relevant Preference Shares’, defined in clause 1 of the Lease to mean the parcel of preference shares that may exercise rights in relation to the accommodation unit in accordance with the Tricare Constitution.
Those documents are:
(a)Share application;
(b)Standard share transfer form;
(c)Constitution of Tricare, chapter 12 ‘Preference shareholder provisions’.
In more detail, the Share application amounts to an offer by Mrs Richards to acquire from the ‘Vendor’, a Mrs Hutton, 104,000 preference shares representing unit 28 at Katandra, at the price of $1.00 per share, a total of $104,000. In other words, prior to Mrs Richards signing the Lease, Mrs Hutton was the owner of the preference shares, representing an entitlement to occupy the residential unit at Katandra.
The Standard share transfer form is the form which Mrs Hutton would complete as vendor, and Mrs Richards would complete as purchaser to acquire the 104,000 shares for the price of $104,000.
Chapter 12 of the Tricare Constitution, in summary, concerns rights attached to the preference shares. Relevantly, rule 12.1 describes how the ‘Exit Entitlement’ is calculated. That is a defined term in s 16(1) of the Act, in summary to mean the amount that a scheme operator may be liable to pay to a former resident under a residence contract arising from:
(a)the resident ceasing to reside in the accommodation unit to which the contract relates; or
(b)the settlement of the sale of the right to reside in the accommodation unit.
The resident’s ‘exit entitlement’ is one of the requirements to be included in the content of a residence contract, under s 45(1)(f) of the Act.
There are links between the Lease which is the residence contract, and the Tricare Constitution for the purposes of the exit entitlement of Mrs Richards, contained in clauses 7 and 8, on the 'Lease Purchase Price', in clause 14 for the rights of Mrs Richards as holder of the 'Relevant Preference Shares', and in clause 31 on, in the words of the heading, ‘Assignment, Termination and other Dealings with the Lease’.
The documents in (a) and (b) of paragraph [31] above, in the form attached to the Tricare written submissions have not been signed. However, I infer that documents in those paragraphs for Mrs Richards have been signed by the relevant parties, given that Tricare submits them as part of its case, and because the Lease has been signed by the relevant parties, as the residence contract under the Act. My view in this sense has been bolstered by the requirement for the Lease to include Mrs Richards’ ‘exit entitlement’, which must be the documents contained in (a)-(c) of paragraph [31] above for the residence contract, which is the Lease, in order to be valid. In any event, no party contends that those documents have not been signed by the relevant parties.
I will now examine application of those documents to each of the potential categories of entitlements of Mrs Richards when terminating the residence contract, that is, firstly refund of the lease purchase price, and secondly, refund of the share purchase price.

Refund of the Lease Purchase Price

Firstly, on the refund of the ‘Lease Purchase Price’, that is specifically the subject of clause 7 of the Lease, in the case of Mrs Richards. It is not a term defined in clause 1 (Interpretation) of the Lease. The term ‘Lease Purchase Price’ is capitalised in both clauses 7 and 8 of Mrs Richards’ Lease, with the effect that the term has the same meaning in each clause.

Clause 7 states that the ‘Resident’ shall on the signing of the Lease pay a Lease Purchase Price of $1,000. Clause 8 is headed ‘Refund of Lease Purchase Price’ and that is a good summary of the effect of the clause. In summary, it provides that if the lease is terminated other than by default of Mrs Richards, then she shall become entitled to a refund of the Lease Purchase Price unless she is the holder of the ‘Relevant Preference Shares’ in which case any refund of the Lease Purchase Price will be in accordance with the ‘Constitution’, defined in clause 1 to mean the Constitution of the Company that is Tricare.
The Tricare Constitution does make provision for repayment of the Lease Purchase Price from Tricare, in rule 12 headed ‘Calculating and paying the exit entitlement’. That rule therefore addresses the requirement in the Act for a residence contract to include the resident’s ‘exit entitlement’, as that term is defined and used in the Act.
Rule 12.1(a)(i) specifically addresses repayment of the Lease Purchase Price,[18] and provides that on the ‘Exit Entitlement Date’,[19] the resident, described in the Constitution as the ‘Preference Shareholder’,[20] will be entitled to receive an Exit Entitlement[21] calculated to include repayment of the Lease Purchase Price from Tricare.
[18]That term is defined in the Constitution, in rule 2.1, to mean the purchase price payable for the Lease, as set out in the Lease.
[19]A term defined in rule 2.1 of the Constitution to mean a date after the ‘Termination Date', a term also defined in rule 2.1 of the Constitution to mean the date the Preference Shareholder’s Lease is terminated in accordance with the Lease or the Act. Clause 14(d) of the Lease provides that the Lease automatically terminates when the resident dies. However, that is not the end of the obligations owed by Tricare. Any property rights under the Lease which is the residence contract would vest in the deceased resident’s estate.
[20]Relevantly, in rule 2.1, to mean a holder of Preference Shares who is also a Lessee.
[21]Defined in rule 2.1 to mean the amount calculated in accordance with rule 12.
I therefore find that Mrs Richards will be entitled to refund of the Lease Purchase Price from Tricare, in the amount of $1,000, subject to the application of other parts of rule 12, which I will analyse below.
Refund of share purchase price
This subject is also covered by rule 12.1 of the Tricare Constitution. In summary, rule 12.1 works in this way. First, rule 12.1(a) provides that on the ‘Exit Entitlement Date’, the Preference Shareholder will be entitled to receive an Exit Entitlement calculated to include three components:
(a)repayment of the Lease Purchase Price;
(b)the price of the Preference Shares that are transferred from the Preference Shareholder (the Lessee, or resident) to a ‘Replacement Shareholder’, who would be a new resident who purchases the shares that confer an entitlement to occupy the residential unit;
(c)the Preference Shareholder’s entitlement to the equivalent of a share of ‘Capital Appreciation’ (if any) as shown in rule 14.1.
Secondly, and on the other side of the ledger, rule 12.1(b) provides that also on the Exit Entitlement Date, the Preference Shareholder must pay to Tricare the total of a series of amounts for items specified in subparagraphs (i)-(vii). In summary, those sub paragraphs are as follows:
(i)      the Exit Fee as calculated in rule 13;
(ii)      the Preference Shareholder’s share of any Capital Depreciation as shown in rule 14.2;
(iii)     the Preference Shareholder’s share of the costs of the sale of the  ‘Replacement Interest’;[22]
(iv)     Tricare's legal costs and disbursements for the surrender of the lease and/or or a record of death (which must mean death of the resident);
(v)      the Reference Shareholder’s share of the costs of Reinstatement Work and Renovation Work as required in rules 18.2 and 18.3;
(vi)     the Services Charges[23] outstanding (if any); and
(vii) any amounts payable by the Preference Shareholder to Tricare and the lease, associated documents, residence contract or the Act (if any).
[22]A term also defined in rule 2.1 of the Constitution to mean each of a new lease granted by Tricare, Preference Shares held by the existing Preference Shareholder and such additional Preference Shares that a Replacement Shareholder is required to acquire.
[23]Defined in rule 12.1 of the Constitution to mean several categories of charges and fees, including the ‘General Services Charge’ as described in the Lease and the ‘Maintenance Reserve Fund Contribution’ also described in the Lease.
I will examine in more detail, some of these components, on both sides of the ledger.
Firstly, on the Exit Fee, under rule 13, the Exit Fee is an amount calculated by a detailed formula set out in a table contained in rule 13. In summary, the Exit Fee is calculated by applying a percentage to the ‘Ingoing Purchase Price’[24] paid by the Preference Shareholder (resident), where the percentage of the Ingoing Purchase Price rises the longer the resident has lived in the residential unit. That has the effect of diminishing the Ingoing Purchase Price, to a greater degree, the longer the resident has lived in the residential unit.
[24]Defined in rule 12.1 of the Constitution, to mean the amount payable by the Preference Shareholder for the Lease and the Preference Shares.
In Mrs Richards’ case, it will be impossible to calculate the Exit Fee until the residence contract under the Act is terminated.
Capital Appreciation and Capital Depreciation on the Ingoing Purchase Price is determined under rule 14. However, if the Preference Shareholder exercised the 'Nil SOCAP Option', the Preference Shareholder is not entitled to any Capital Appreciation or subject to any Capital Depreciation of the Ingoing Purchase Price. On the share application form, Mrs Richards indicated that the Nil SOCAP option applied. This means that Mrs Richards’ Exit Entitlement is not subject to any Capital Appreciation or Capital Depreciation.
For the other items in the categories set out in rule 12.1(b) as summarised above, such as any outstanding Services Charges, it is only possible to calculate them at the point of time which is the Exit Entitlement Date. It is obviously impossible to calculate those amounts for some future date which is unknown.
This is determinative of the second order sought in the final written submissions made on behalf of Mrs Richards, that where a resident leaves the Katandra facility, Tricare must refund the whole of the lease purchase price (with the extended meaning of that expression as agreed by the parties and set out above) paid by the exiting resident. Very simply, that the exit entitlement under the Act is calculated under the residence contract, in particular the component which is the Tricare Constitution, is contrary to that proposition.
I find against the second order sought by Mrs Richards. Instead, the exit entitlement she is required to receive under the Act will be determined in accordance with rule 12 of the Tricare Constitution. That can only be determined when her residence contract is terminated under the Act.

Claim in negligence

As described above, one of the three ‘causes of action’ that Mrs Richards relies on in her application is a cause of action in negligence, by removal of staff available in Katandra to provide emergency services on the basis of availability 24 hours a day, seven days a week.
In the common law cause of action in negligence, there are three well-known elements that a person relying on the action (usually known as a plaintiff, but in this case, Mrs Richards), must establish to achieve success:
(a)the defendant, or the party against whom the cause of action in negligence is brought, owes a duty of care to the plaintiff; and
(b)there is a breach of that duty of care by the defendant; and
(c)the plaintiff has suffered loss because of that breach of duty of care, which is not too remote from the breach of the duty of care.
The usual remedy that a successful plaintiff would seek against a defendant is payment of money, as damages, by the defendant to the plaintiff to compensate the plaintiff for the loss suffered because of the breach of duty of care.
I do not think I need to analyse application of each of the elements of the cause of action in negligence to dispose of this claim. In her written submissions, Mrs Richards contends that Tricare owed her a duty of care, in particular, to provide the emergency services on a 24/7 basis. She contends that Tricare breached this duty of care by discontinuing the emergency services at Katandra on that basis.
Where the claim falls down is that Mrs Richards has not contended for, or sought orders, that any breach of a duty of care that Tricare would owe to Mrs Richards has caused her to suffer any particular personal injuries, or financial loss. In other words, the third element of the cause of action in negligence has not been claimed, let alone established, assuming for the sake of consideration, that the first two elements have been established.
To be sure, the written submissions filed on behalf of Mrs Richards contend for several incidents where the cancellation of the 24/7 staffing presence at Katandra has had consequences for the residents.
First, Ms Richards says that there have been a number of incidents at Katandra where the fire alarm has been activated.[25] They have all subsequently been found to be false alarms. Mrs Richards contends that the activation of the fire alarm and loudspeaker warning causes chaos, confusion and fear amongst the residents until the Fire Brigade attends to investigate and switch the alarm off. This is a general contention, and not made specifically in the case of Mrs Richards, let alone whether she suffered any particular personal injury as a result, within the scope of the law of negligence.
[25]Paragraphs 29-30 of the written submissions filed on 19 April 2024.
Second, the written submissions on behalf of Mrs Richards[26] refer to a ‘fire incident’ alleged to have occurred on 23 October 2022 when the fire alarm went off at Katandra. The cause is stated to have ended up being burning toast. The written submissions contend that the residents were confused about what was happening and what they were meant to do. Some residents could not hear the unfolding emergency or were too afraid to come out of their rooms. The submission concludes that the incident highlighted that, in a real emergency, the outcome could have been catastrophic with serious injury and/or loss of life.
[26]Paragraphs 34-39 of the April written submissions.
The written submissions do not contend that Mrs Richards suffered any particular personal injury as a result of the incident. The conclusion on the incident is simply to highlight what could have occurred in a real emergency. However, the law of negligence does not allow for success for speculation about what could have occurred, but did not occur.
Third, Mrs Richards’ written submissions refer to a general lack of maintenance and upkeep at Katandra.[27] It is difficult to see any connection between that contention, even if proven, against any cause of action in negligence. The point may be that if there had been an on-site 24/7 staff presence, then there would not have been a lack of maintenance and upkeep. However even that link is not specifically stated.
[27]Paragraph 40-43.
The remedy which Mrs Richards appears to seek as an outcome of the negligence which she contends for, is an order that Tricare reinstate the 24/7 in-house staff emergency on-call service at Katandra. However, as I have analysed in this decision, the legal obligation for Tricare to provide a service of that kind, depends on the contractual obligations under the residence contract. If any residents suffered any personal injury or financial loss because of a breach of a duty of care owed by Tricare under the law of negligence, that would be a separate matter. Nothing of that kind is alleged to have been suffered by Mrs Richards.

Claim for interest

Mrs Richards seeks an award of interest on any amount awarded to her in the event her application is successful. In the end result, I have not found that any financial compensation should be paid to Mrs Richards under the Act, including the possibility of the Tribunal making an order to pay an amount (including an amount of compensation) to Mrs Richards under s 191(2)(b) of the Act.
This aspect of Mrs Richards’ claim is also dismissed.

Costs

Finally, Mrs Richards seeks an order of costs of the application in her favour.
Relevantly, the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’) confers a jurisdiction on the Tribunal to make an order for costs, under s 100 and s 102 of that Act. Section 100 provides as follows:
100 Each party usually bears own costs
Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceeding.
There is no provision in part 11 or part 12 of the Retirement Villages Act which makes provision for the Tribunal to award costs of a proceeding in the Tribunal, as an ‘enabling Act’.
Section 102 of the QCAT Act confers jurisdiction on the Tribunal to make an order to pay costs if the Tribunal considers the ‘interests of justice’ require it to make the order, including having regard to the factors set out in s 102(3).
There is nothing in those provisions which would persuade me that there should be a departure from the starting position on costs set out in s 100 that each party bear their own costs. Moreover, Mrs Richards has been unsuccessful in her application, which is a matter relevant to the factor contained in s 102(3)(c) about the ‘relative strengths of the claims made by each of the parties to the proceeding’.
Accordingly, I make no order as to costs.

Order

The Applicant’s application is dismissed.