Ross v Chief Executive, Department of Housing and Public Works
[2025] QCAT 231
•16 June 2025
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Ross & Ors v Chief Executive, Department of Housing and Public Works & Anor [2025] QCAT 231
PARTIES:
MARGARET MARY ROSS
(FIRST APPLICANT)
MAUREEN ELIZABETH WILSON
(SECOND APPLICANT)
RUDOLPH CHRISTIAN GARBODE
(THIRD APPLICANT)
JUTTA LORE GUSTEL VANDERMEER
(FOURTH APPLICANT)
SHIRLEY ROSE MCPHERSON
(FIFTH APPLICANT)
OWLYN JILL KIESEKER
(SIXTH APPLICANT)
V
CHIEF EXECUTIVE, DEPARTMENT OF HOUSING AND PUBLIC WORKS (first respondent)
PUCSLA NO 5 PTY LTD
(second respondent)
APPLICATION NO/S:
GAR195-25
MATTER TYPE:
General administrative review matters
DELIVERED ON:
16 June 2025
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member Jensen
ORDERS:
1. That pursuant to s 22(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the decision of the first respondent made on 14 March 2025 under the Retirement Villages Act 1999 (Qld), that approved the scheme operator’s proposed closure plan for Seasons Caloundra Supported Living Community retirement village located at 30 Baldwin Street, Golden Beach Queensland is stayed until determination of the application to review a decision filed on 27 March 2025 or further order of the tribunal.
2. It is a condition of the stay order that the second respondent is not required to reinstate the community bus service; the lifestyle programme or the emergency call system.
CATCHWORDS:
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – general administrative review – stay application regarding the decision to approve the retirement village closure plan under Retirement Villages Act 1999 (Qld) whether the stay or part of the stay should be ordered
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 20, s 22(3), s 22(4), s 22(6)
Retirement Villages Act 1999 (Qld), s 3(1)(b), s 41A, s 40D(5)
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)
Applicant:
First Respondent
Second Respondent:
L Kovich
R Morrison of counsel
J Gaske
REASONS FOR DECISION
The issue
By a decision on 14 March 2025 made under the Retirement Villages Act 1999 (Qld) (the “RV Act”), the first respondent (the regulator) approved the scheme operator’s proposed closure plan for Seasons Caloundra Supported Living Community retirement village located at 30 Baldwin Street, Golden Beach Queensland (the “Decision”).
The second respondent received the Decision on 17 March 2025.
On 18 March 2025, the second respondent wrote to the residents of the retirement village stating that certain services would be removed such as the:
(a)community bus (from 28 March 2025);
(b)lifestyle program (from 28 March 2025); and
(c)emergency call system (from 11 April 2025).
On 27 March 2025, the applicants (residents) lodged with the tribunal an application to review the Decision and also an application to stay the Decision.
Both applications were served on the first respondent on 31 March 2025. This decision of the tribunal deals only with the stay application.
The second respondent opposes the stay application. The first respondent does not oppose it.
On 9 April 2025, the tribunal directed that the scheme operator be joined as second respondent to the proceedings.
Consideration of the stay application
The law
The Decision is a reviewable decision pursuant to s 17 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the “QCAT Act”) and s 41A of the RV Act.
Pursuant to s 22(4) of the QCAT Act, the tribunal may make a stay order only if it considers the order is desirable after having regard to:
(a)the interests of any person whose interest may be affected by the making of the order or the orders not being made;
(b)any submission made to the tribunal by the decision-maker for the reviewable decision;
(c)the public interest.
In addition to the above considerations, the tribunal must also give consideration to:
(a)the applicants’ prospects of success in the review proceedings;
(b)the effect of a stay on the review proceedings;
(c)whether irremediable harm might be suffered by the application if a stay is not granted.
I will deal with the above considerations.
The interests of any person whose interest may be affected by the making of the order or the orders not being made (Impact of stay on parties)
The applicants submit that a stay would not be an unreasonable inconvenience for the second respondent because the village has largely transitioned to a rental tenancy agreement model with only six (out of 120) apartments having a 99 year retirement village lease tenure.
The applicants also submit the following at page 2 of the “Further Submission on Application to Stay”:
It is submitted that this will cause irreversible harm to the Residents who are seeking a direction that the Closure Plan be revised to offer significantly improved assistance. Significantly increased assistance will be required to allow the affected Residents, who are in the last stages of their lives, to find alternate, secure accommodation close to their family, friends and critical support networks. Obviously, if the currently approved Closure Plan were to be fully implemented, it is unclear what options would be available to QCAT.
The second respondent submits that a stay order would put it to great cost and inconvenience including requiring the second respondent to:
(a)reinstate the community bus service at great cost (exceeding $90,000) in circumstances where the applicants rarely use this service;
(b)reinstate the lifestyle programme with a startup cost of approximately $10,000 plus ongoing costs estimated at $15,000 per annum. The second respondent submits that the applicants rarely attended the lifestyle program activities;
(c)reinstate the wireless emergency call system at great cost of $56,332 or as high as $221,361 plus on going monitoring costs; and
(d)maintain three legislated funds and an annual capital replacement fund.
The second respondent further submits that the impact on the continued closure on the six applicants would be minimal, even on a day to day basis.
The first respondent submits that if a stay is not granted, the plan will be implemented and that outcomes for the applicants would likely be irreversible.
The second respondent submits that all but six out of 26 residents have accepted that closure of the scheme is inevitable. The applicants state that they seek a direction for the closure plan to be revised to offer them improved assistance regarding alternate secure accommodation close to their family, friends and critical support networks.
A stay order would include the second respondent reinstating the cancelled services. The reinstatement costs would therefore be for the period of time only until closure of the scheme at which time the services would once again be cancelled. I find it to be to be an unreasonable commercial requirement to place on the second respondent in these circumstances.
I find that the balance of convenience in relation to this element favours the second respondent. The impact of a stay order on the second respondent due to the expense and inconvenience that will be involved is greater than the inconvenience to the applicants (who are seeking improved assistance from the second respondent) if there is no stay.
Public interest
The second respondent submits to the effect that:
(a)A main object of the RV Act is to encourage the continued growth and viability of the retirement villages industry in the state.[1] This object, the second respondent submits provides that it is in the public interest to permit a scheme operator to “freely operate a business, including the need to be able to close a village if it is determined that this is in the best commercial interests of the scheme operator”.
(b)The RV Act provides for a process by which a village can be closed and that both respondents have followed that process.
(c)The closure has been accepted by all but six out of 26 residents.
[1]RV Act s 3(1)(b).
I find that the public interest element favours the grant of a stay for the following reasons:
(a)The applicants submit that they are “in the last stages of their lives” and that they are vulnerable. This is not disputed by the second respondent.
(b)The purpose of the review application is not to prevent the closure of the village; it is to seek a direction that the closure plan be revised to offer significantly improved assistance to residents to find alternate accommodation. If the plan is implemented, then this opportunity will be lost to the applicants.
(c)There is a public interest in permitting a scheme operator to conduct its business freely having regard to economic interests. However, the applicants argue that s 40D(5) of the RV Act needs to be tested on review. That section provides that the decision-maker may only approve a proposed closure plan if the satisfied the plan provides for a “clear, orderly and fair process for the closure of the retirement village scheme”. In my view, the public interest is better served by ensuring that the requirements of s 40D(5) of the RV Act are able to be reviewed by the tribunal (standing in the shoes of the original decision-maker) without change to the status quo rather than allowing the second respondent to close the scheme and cancel the leases of the remaining residents before the review application is heard and determined by the tribunal.
The applicants’ prospects of success in the review proceedings (Prospects of success of primary application)
The review application seeks:
(a)a review the fairness of the approved closure plan; and
(b)an order directing the scheme operator to negotiate genuinely with the applicants and the remaining 99 year lease holders in order that they arrive at provision of fair compensation.
The second respondent submits to the effect that the applicants are seeking to have imposed upon the second respondent commercial terms as to the closure of the retirement village where there is no such power in the legislation for that to occur. The second respondent submits that the exercise involved is relevantly the determination of whether the process of closure of the scheme is fair, not the outcome of that process. The second respondent submits that commercial relationship between the applicants and the second respondent when the lease ends is to be found in the lease document.
The first respondent submits that the applicants have an arguable case in respect of the review proceeding. The first respondent submits that while the RV Act cannot prevent the closure of a scheme, it can direct change to the closure plan for it to meet the requirements of s 40D(5) of the RV Act.
Pursuant to s 20 of the QCAT Act, the purpose of the review hearing is to produce the correct and preferable decision after a fresh hearing on the merits. A central issue in this review is the consideration of s 40D(5) of the RV Act and the meaning of the words “clear, orderly and fair process” which it is submitted have not been interpreted by a court or tribunal. I place due weight on this consideration as a factor that favours the preservation of the status quo.
The effect of a stay on the review proceedings
It is not disputed that the second respondent is implementing the closure plan. A stay will preserve the status quo until the review is heard. Without the stay, the review proceedings will possibly be rendered futile as the second respondent will not be prevented from implementing the currently approved closure plan which could be fully executed before that final hearing depending on when that occurs. I also place due weight on this consideration.
Whether the applicants would suffer irremediable harm
I am satisfied from the submissions before me that the applicants would suffer irremediable harm if the stay is not granted. If the approved closure plan has been fully executed by the time of the review hearing, it may be too late to implement any fairer terms that might be gained from the review.
The extent of the stay
Pursuant to s 22(3) of the QCAT Act, the tribunal may, on the application of a party, make an order staying the operation of all or part of a reviewable decision if a proceeding for the review of the decision has started under the QCAT Act.
The second respondent submits that the impact of continued closure on each of the applicants would be minimal even on a day to day basis. There are submissions about each of the six applicants including that the:
(a)First, second and fourth applicants have replaced the emergency call system with alternative technology.
(b)Fifth applicant has moved out of the retirement village and that the sixth applicant is no longer suitable for independent living.
(c)First applicant rides her mobility scooter around the village and local area; the third applicant catches the local bus around the area and uses Seasons Home Care transport for longer distance travel.
In view of the expense that would be incurred in reinstating the cancelled services, the fact that they would be of apparent little utility if reinstated because the applicants don’t use them or have alternative arrangements in place and the fact that reinstatement would only be for period until the scheme is closed, I am satisfied that those services should be carved out of the stay order.
Having regard to all the circumstances addressed above, I consider that it is desirable to order that there be a stay of the Decision but on the condition that the second respondent is not required to reinstate the:
(a)community bus service;
(b)lifestyle programme;
(c)emergency call system.
Orders
That pursuant to s 22(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), I order that the decision of the first respondent made on 14 March 2025 under the Retirement Villages Act 1999 (Qld), that approved the scheme operator’s proposed closure plan for Seasons Caloundra Supported Living Community retirement village located at 30 Baldwin Street, Golden Beach Queensland be stayed until determination of the application to review a decision filed on 27 March 2025 or further order of the tribunal.
It is a condition of the stay order that the second respondent is not required to reinstate the community bus service; the lifestyle programme or the emergency call system.
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