Southern Cross Care (WA) Inc v Commissioner of Titles

[2024] WASC 337

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   SOUTHERN CROSS CARE (WA) INC -v- COMMISSIONER OF TITLES [2024] WASC 337

CORAM:   WHITBY J

HEARD:   ON THE PAPERS

DELIVERED          :   10 SEPTEMBER 2024

FILE NO/S:   CIV 1665 of 2024

BETWEEN:   SOUTHERN CROSS CARE (WA) INC

Plaintiff

AND

COMMISSIONER OF TITLES

First Defendant

REGISTRAR OF TITLES

Second Defendant

Catchwords:

Retirement Villages Act 1992 (WA) - Requirement to lodge a memorial under s 15(3) - Definition of 'Retirement Villages' and 'Retirement Village Scheme' pursuant to s 3 - Whether facilities operating on parcel of land subject to memorial are subject to the Retirement Villages Act - Memorial lodged in error over separate 'retirement villages' and 'retirement village schemes' - Transfer of Land Act 1893 (WA) - Correction of error under s 188(3) of the Transfer of Land Act 1893 (WA)

Legislation:

Retirement Villages Act 1991 (WA)
Transfer of Land Act 1893 (WA)

Result:

Application granted

Category:    B

Representation:

Counsel:

Plaintiff	:	No appearance
First Defendant	:	No appearance
Second Defendant	:	No appearance

Solicitors:

Plaintiff	:	Jackson McDonald
First Defendant	:	In person
Second Defendant	:	In person

Case(s) referred to in decision(s):

Amana Living Incorporated v Commissioner of Titles [2019] WASC 203

Amana Living Incorporated v Commissioner of Titles [2024] WASC 45

Retirement Care Australia (Hollywood) Pty Ltd v Commissioner for Consumer Protection [2013] WASC 219

Swancare Group Inc v Commissioner for Consumer Protection [2014] WASC 80

WHITBY J:

1. Up until 2014, there was a misunderstanding within the retirement village industry that a single memorial could be lodged over land on which multiple, separate retirement villages operated. This misunderstanding means that residents of distinct retirement villages have the benefit of a statutory charge over all the parcels of land encumbered by a single memorial.

2. Southern Cross Care (WA) Inc (Southern Cross) seeks orders to disencumber two parcels of land over which a single memorial has been lodged to remedy this misunderstanding.

3. For the reasons that follow, I make the orders sought by Southern Cross.

Southern Cross's application

1. On 6 June 2024, the applicant, Southern Cross, filed an originating summons seeking:

   1.A declaration that the Register maintained under section 48 of the Transfer of Land Act 1893 (WA) contains errors in respect of:

   a)Memorial E996555 (within the meaning of section 15 of the Retirement Villages Act 1992 (WA)), which erroneously purports to aggregate under a single memorial multiple, separate 'retirement villages' (within the meaning of section 3 of the Retirement Villages Act 1992 (WA)) established and operating or formerly operated on multiple, separate parcels of land, and;

   b)the correspondingly endorsed certificates of title set out in the First Schedule, which certificates of title erroneously indicate that the land the subject of the certificates of title:

   i.is part of a single 'retirement village' (within the meaning of section 3 of the Retirement Villages Act 1992 (WA)) also comprising each of the other parcels of land endorsed by the respective single memorial, and;

   ii.may be encumbered by such unregistered statutory charges as may arise under section 20(1) of the Retirement Villages Act 1992 (WA) in respect of any 'premiums' paid by residents or former residents of other, separate retirement villages also erroneously the subject of a single memorial.

   2.A declaration that section 188(3) of the Transfer of Land Act 1893 (WA) empowers the First Defendant to direct the Second Defendant, and the Second Defendant to comply with such direction, to correct the errors in the Register by expunging Memorial E996555 from all of those certificates of title which Memorial E996555 currently endorses (which are listed in the First Schedule).

   3.A declaration that the Plaintiff is required, on or before the expunging of Memorial E996555, to lodge a new and separate registrable memorial over the parcel of land described in the Second Schedule under section 15 of the Retirement Villages Act 1992 (WA).

   4.There be no order as to costs.

2. The certificates of title currently endorsed by Memorial E996555 dated 21 July 1992 and registered on 24 September 1992 are:[1]

   1.The land upon which the 'Thomas Perrott' retirement village operates at 62 Fifth Avenue, Rossmoyne, more particularly described in Certificate of Title Volume 1492 Folio 595; and

   2.The land upon which the 'Taylor Dallimore' retirement village formerly operated at 10 Burnett Street, Embleton, more particularly described in Certificate of Title Volume 2967 Folio 65.

   [1] Memorial E996555 Map; Affidavit of Jade Ashlee Olynyk; Annexure JAO-5, pages 20 - 21; Annexure

The parties

1. The Commissioner of Titles (the first defendant) and the Registrar of Titles (the second defendant) have advised that they do not intend to enter an appearance in the proceedings.[2]

   [2] Supplementary affidavit of Jade Ashlee Olynyk [12]; Annexure JAO-2, pages 9 - 10.

The evidence

1. Southern Cross relies upon the following evidence in support of its application:

   (1)Affidavit of Jade Ashlee Olynyk affirmed 5 June 2024 (Affidavit of Jade Ashlee Olynyk);

   (2)Affidavit of Beverley Margaret Kukura sworn 14 May 2024 (Affidavit of Beverley Margaret Kukura);

   (3)Affidavit of Michael Gerrard Blakiston affirmed 28 May 2024 (Blakiston Affidavit);

   (4)Affidavit of Claire McLelland sworn 4 June 2024 (Affidavit of Claire McLelland); and

   (5)Supplementary affidavit of Jade Ashlee Olynyk affirmed 2 July 2024 (Supplementary affidavit of Jade Ashlee Olynyk).

Background

1. Southern Cross is a not-for-profit organisation that provides services to the ageing population of Western Australia.  This includes the operation of retirement villages.[3]

   [3] Affidavit of Beverley Margaret Kukura [4]; Affidavit of Claire McLelland; Annexure CM-1, pages 15 ‑ 16.

2. On 31 October 1969, Southern Cross was incorporated under the name Villa Pelletier (Inc).[4]  Villa Pelletier was founded by the Western Australian division of a Catholic fraternal order, the Knights of the Southern Cross.[5]

   [4] Affidavit of Jade Ashlee Olynyk [7]; Annexure JAO-1, page 16; Affidavit of Claire McLelland;

   [5] Affidavit of Michael Gerrard Blakiston [8]; Affidavit of Claire McLelland; Annexure CM-15, page 112;

3. Since original incorporation, Southern Cross's name has changed three times. On 10 February 1992, Villa Pelletier (Inc) changed its name to Southern Cross Homes (WA) Incorporated.[6]  On 19 June 1998, Southern Cross Homes (WA) Incorporated changed its name to Southern Cross WA Aged Care (Incorporated).[7]  On 28 December 2001, Southern Cross WA Aged Care (Incorporated) changed its name to Southern Cross Care (WA) Inc - the name by which it is now known.[8]

   [6] Affidavit of Claire McLelland; Annexure CM-3, page 18.

   [7] Affidavit of Claire McLelland; Annexure CM-4, page 19.

   [8] Affidavit of Claire McLelland; Annexure CM-5, page  20.

4. As of July 1992, Southern Cross was the owner and operator of the following retirement villages and aged care facilities:

   (1)Mount St Camillus;

   (2)Two Pines;

   (3)Foley Village;

   (4)Joseph Cooke;

   (5)Villa Pelletier; and

   (6)B.F. Prindiville.

5. At that time, Southern Cross also operated two other retirement villages: Thomas Perrott Village and Taylor Dallimore Village.[9] In September 1992, Southern Cross also became the owner of the land on which these two villages operated.[10]

   [9] Affidavit of Claire McLelland; Annexure CM-24, page 156; Affidavit of Michael Gerrard Blakiston [10].

   [10] Affidavit of Michael Gerrard Blakiston [12(i)]; Annexure MGB-13, pages 79 - 104; Affidavit of Jade Ashlee Olynyk [13(c)], [16(c)]; Annexure JAO-6, pages 24 - 49; Annexure JAO-7, pages 65 - 90.

Memorial E996555

1. On 21 July 1992, Memorial E996555 (Memorial) was executed by Southern Cross, but was not registered over the following two parcels of land until 24 September 1992: [11]

   [11] Affidavit of Jade Ashlee Olynyk [13(c)], [16(c)]; Annexure JAO-5, pages 20 - 21; Affidavit of Michael Gerrard Blakiston [12(i)]; Annexure MGB-13, pages 79 - 104; Affidavit of Jade Ashlee Olynyk [13(c)], [16(c)]; Annexure JAO-6, pages 24 - 49; Annexure JAO-7, pages 65 - 90.

Volume / Folio41		Location42		Name43
1492 / 595	Rossmoyne		Thomas Perrott
1423 / 804	Embleton		Taylor Dallimore

1. The Memorial contains two notations. Notation 1 states:[12]

   The land above described is or is proposed to be used for the purposes of a Retirement Village scheme within the meaning of the Retirement Villages Act 1991.

   [12] Affidavit of Jade Ashlee Olynyk; Annexure JAO-5, pages 20 - 21.

2. Notation 2 states:[13]

   By virtue of section 20 of the Retirement Villages Act 1992 the Land above described may be subject to a charge securing repayment of money to residents of the Retirement Village.

   [13] Affidavit of Jade Ashlee Olynyk; Annexure JAO-5, pages 20 - 21.

3. The reference in Notation 1 to the 'Retirement Villages Act 1991' is a typographical error, as no such legislation exists.  Notation 2 correctly refers to the legislation as the 'Retirement Villages Act 1992' (WA) (RVA).[14]

   [14] Plaintiff's outline of submissions filed 3 July 2024 [30] (Submissions).

Applicable legal principles

1. Cases involving a single memorial lodged in respect of multiple separate retirement villages have come before this court in Retirement  Care  Australia (Hollywood) Pty Ltd v Commissioner for Consumer Protection (Retirement Care),[15]  Swancare Group Inc v Commissioner for Consumer Protection (Swancare),[16] Amana Living Incorporated v Commissioner of Titles (Amana Case),[17] and Amana Living Incorporated v Commissioner of Titles (Second Amana Case).[18]

   [15] Retirement Care Australia (Hollywood) Pty Ltd v Commissioner for Consumer Protection [2013] WASC 219.

   [16] Swancare Group Inc v Commissioner for Consumer Protection [2014] WASC 80.

   [17] Amana Living Incorporated v Commissioner of Titles [2019] WASC 203.

   [18] Amana Living Incorporated v Commissioner of Titles [2024] WASC 45.

2. I adopt the principles I set out in [24] - [39] of the Second Amana Case[19] without repeating them.

   [19] Second Amana Case [24] - [39].

Issues to be determined

1. The issues for determination are:

   (1)What facilities operating on the parcels of land subject to the Memorial are subject to the RVA (where it is found that a parcel of land the subject of the memorial operates a facility that is not subject to the RVA, the remaining issues (2 and 3) fall away);

   (2)Was there a single 'complex of residential premises … and appurtenant land' taking in all the parcels of land the subject of the Memorial, or were there separate complexes aggregated under a single memorial; and

   (3)Was there a single overarching 'retirement village scheme' pursuant to which multiple 'retirement villages' were established.

What facilities operating on the parcels of land subject to the Memorial are subject to the RVA?

1. In 1992:

   (1)Thomas Perrott Village comprised of 55 'units'; and

   (2)Taylor Dallimore Village comprised of 16 'units'.

2. At the time of these reasons:

   (1)Thomas Perrott Village remains a retirement village with 55 independent living units on site;

   (2)Thomas Perrott Village also operates an aged care facility known as Joseph Cooke House, which operates separately from the retirement village despite being on the same parcels of land;[20]

   (3)In October 2010, Taylor Dallimore Village was demolished and the land has remained vacant.[21]

   [20] Affidavit of Beverley Margaret Kukura [36], [82] - [87]; Annexure BMK-6, page 127.

   [21]Affidavit of Claire McLelland; Annexure CM-71, page 1935.

3. Therefore, the only facility operating on the parcels of land subject to the Memorial which is subject to the RVA is the Thomas Perrott Village.

Was there a single 'complex of residential premises…and appurtenant land'' taking in all the parcels of land the subject of the Memorial, or were there separate complexes aggregated under a single memorial?

1. Southern Cross relies on the following evidence to establish that the Thomas Perrott Village and Taylor Dallimore Village were separate 'retirement villages':

   (1)The distance between complexes;

   (a)The distance between the Thomas Perrott village in Rossmoyne and the former Taylor Dallimore village in Embleton is approximately 22 km.[22]

   [22] Memorial E996555 Map; Affidavit of Beverley Margaret Kukura [21] - [23].

   (b)In Swancare, the distance between two parcels of land which supported the existence of separate complexes was only 4 km.

   (2)The circumstances surrounding lodgement of the Memorial;

   (a)The Memorial was executed by two board members of Southern Cross, Jerry Donovan and Des Campbell.  At present, Mr Donovan is unwell and resides in an aged care facility, and Mr Campbell's whereabouts are unknown.[23]

   [23] Affidavit of Jade Ashlee Olynyk [33] - [34]; Affidavit of Michael Gerrard Blakiston [21]; Annexure MGB‑14, pages 105 - 106.

   (b)'Blakiston & Crabb' is stamped on the Memorial, near the 'lodged by' space.[24] Blakiston & Crabb was a law firm operating during that time and Michael Blakiston was a partner of the firm.[25]  Mr Blakiston was a member of the board of management responsible for the oversight of Southern Cross retirement villages and aged care homes in WA between 1992 and 2010.[26]

   [24] Affidavit of Michael Gerrard Blakiston [5].

   [25] Affidavit of Michael Gerrard Blakiston [5].

   [26] Affidavit of Michael Gerrard Blakiston [4], [9].

   (c)On 21 May 1992, the RV Act and its requirement for memorials to be lodged over parcels of land was discussed by Southern Cross at a Projects Development Sub-Committee meeting.  The meeting minutes reveal that Southern Cross knew the introduction of the RV Act was imminent and that changes would be required including 'Memorials to be put on Titles'.[27]

   [27] Affidavit of Claire McLelland; Annexure CM-11, page 90.

   (d)While Mr Blakiston has no specific recollection of the lodgement of the Memorial, he does not believe that Taylor Dallimore Village and Thomas Perrott Village were included on the same memorial because they were one single retirement village.[28]

   [28] Affidavit of Michael Gerrard Blakiston [13] - [18].

   (e)During Mr Blakiston's time as a member from 1992 to 2010, each of the Southern Cross retirement village sites operated independently of one another with separate village names, managers, reports on income and expenditure and operating budgets.[29]

   [29] Affidavit of Michael Gerrard Blakiston [19].

   (f)The plaintiff submits that an inference can be drawn that the intention in executing E996555 was simply to comply with the then new RV Act.[30]

   [30] Submissions [58].

   (3)The contemporaneous execution of memorial E957370;

   (a)In 1992, Southern Cross operated various retirement villages and aged care facilities, including:[31]

   [31]Affidavit of Michael Gerrard Blakiston [10]; Affidavit of Claire McLelland; Annexure CM-24, page 156.

   (i)Mount St Camillus;

   (ii)Foley Village;

   (iii)Villa Pelletier;

   (iv)B.F. Prindiville;

   (v)Thomas Perrott; and

   (vi)Taylor Dallimore.

   (b)As at January 1992, Southern Cross only owned the parcels of land on which Villa Pelletier and Foley Village operated.[32]

   [32] Affidavit of Michael Gerrard Blakiston [12(a)(i)]; Annexure MGB-1, pages 11 - 12; Annexure MGB-2,

   (c)During April 1992, Southern Cross became the owner of the parcels of land on which Mount St Camillus and B.F. Prindiville operated.[33]

   [33] Affidavit of Michael Gerrard Blakiston [12(c)], [12(d)]; Annexure MGB-8, pages 26 - 55; Annexure

   (d)The RV Act included a requirement for an 'owner' to cause memorials to be lodged within 3 months of its commencement.[34]

   [34] Section 15(4), RV Act.

   (e)On 21 July 1992, Southern Cross executed two memorials being E957370 and the Memorial.[35]

   [35] Affidavit of Michael Gerrard Blakiston [12(g)]; Annexure MGB-12, page 77 - 78; Annexure MGB-14, pages 105 - 106; Affidavit of Jade Ashlee Olynyk; Annexure JAO-5, pages 20 - 21; Annexure JAO-8, pages 94 - 95.

   (f)As at 21 July 1992, the parcels of land the subject of E957370 were all owned by Southern Cross, namely:[36]

   [36] Affidavit of Jade Ashlee Olynyk; Annexure JAO-8, pages 94 - 95; Annexure JAO-9, pages 96 - 118; Annexure JAO-10, pages 119 -125; Annexure JAO-11, pages 126 - 137; Annexure JAO-12, pages 138 - 170.

   (i)Mount St Camillus;

   (ii)Foley;

   (iii)Villa Pelletier; and

   (iv)B.F. Prindiville.

   (g)However, in July 1992, two of the parcels of land the subject of the Memorial were not owned by Southern Cross.[37] Those two parcels of land were later transferred to Southern Cross on 24 September 1992, the same day that Southern Cross lodged the Memorial.[38]

   [37] Affidavit of Jade Ashlee Olynyk, Annexure JAO-6, pages 24 - 49; Annexure JAO-7, pages 65 - 90.

   [38] Affidavit of Michael Gerrard Blakiston [12(j)]; Annexure MGB-14, pages 105 - 106; Affidavit of Jade

   (h)The plaintiff submits that the transfer and registration history alongside the RV Act requirement to lodge memorials introduced in 1992 supports the inference that the two memorials were prepared by Southern Cross with reference to the ownership status of the land and to comply with the RV Act.[39]

   [39] Submissions [73].

   (4)Separate administration;

   (a)During Mr Blakiston's time as a member of the board between 1992 and 2010, each village had its own village manager.[40]

   [40] Affidavit of Michael Gerrard Blakiston [19(b)].

   (b)As at May 2024, four village managers were employed by Southern Cross.[41]  Where a manager is responsible for more than one village, their management of those villages remains independent.[42]

   [41] Affidavit of Beverley Margaret Kukura [51].

   [42] Affidavit of Beverley Margaret Kukura [53].

   (5)Separate financial management;

   (a)From at least 1993, all sites within Southern Cross' portfolio were treated as financially independent of one another.

   (b)In the monthly operating reports which detail income and expenditure of each facility, Thomas Perrott Village and Taylor Dallimore Village had separate lines under the Independent Living Units or 'ILU'.[43]

   [43] Affidavit of Claire McLelland, Annexure CM-40, pages 355, 357; Annexure CM-41, pages 373, 376;

   (c)Thomas Perrott Village and Taylor Dallimore Village each prepared their own profit and loss statements.[44]

   [44] Affidavit of Claire McLelland; Annexure CM-41, pages 399, 401; Annexure CM-42, pages 465 - 466;

   (d)During the period from 1992 to 2010, each village operated as separate financial units, with their own purchasing policy, annual operating budget and financial reports.[45]

   [45] Affidavit of Michael Gerrard Blakiston [19(c)-(d)].

   (e)Thomas Perrott Village has continued to operate as financially independent and distinct from the other retirement villages since Taylor Dallimore's demolition.[46]

   [46] Submissions [92].

   (f)Southern Cross currently creates operating budgets for each distinct retirement village within its portfolio.[47]

   [47]Affidavit of Beverley Margaret Kukura [54] - [63], [80] - [81].

   (g)Presently, the allocation of village manager wages is an expense of the village that manager is employed to manage.[48] If a manager manages more than one village, the manager's salary is apportioned as an expense based on time spent at each village.

   [48] Affidavit of Beverley Margaret Kukura [58] - [61]; Annexure BMK-7, pages 128 - 135.

   (h)The plaintiff submits that the treatment of Taylor Dallimore and Thomas Perrott Villages as financially independent of one another supports the inference that they are in fact separate retirement villages.[49]

   [49] Submissions [91].

   (6)Leasing and rental arrangements; and

   (a)Southern Cross has located historical records of a license agreement for Thomas Perrott Village dated 16 January 1992 and Taylor Dallimore Village dated 20 September 1993.[50]

   (b)As at January 1992, residents in Thomas Perrott Village were required to pay an ingoing contribution upon entry to the village.  They were entitled to be repaid a portion of that on termination of the license agreement.[51] No records for Taylor Dallimore Village of contractual arrangements have been found for 1992.

   (c)Annexure A to the Thomas Perrott Village license agreement is titled 'Questions to be answered in writing by management of a retirement village'.[52]  Its purpose is to assist with understanding the contractual arrangements at Thomas Perrott Village and Taylor Dallimore Village.

   (d)Question 12 of Annexure A asks "What are the rights to refund of a Licensee under the Licence Agreement?".  The answer to that question identifies different refund rights for residents of Thomas Perrott Village and residents of Taylor Dallimore Village.[53]

   (e)Question 16 of Annexure A enquires about the 'maintenance fee' or 'licence fee' increases for the 1990/91 and 1991/92 financial years. Southern Cross' answer to that question demonstrates that Thomas Perrott Village and Taylor Dallimore Village had different increases in both financial years.[54]

   (7)Separate identities;

   (a)The plaintiff submits that the two separate names was indicative of each retirement village being treated as separate administrative units with their own identities.

   [50] Affidavit of Claire McLelland; Annexure CM-7, pages 37 - 83; Affidavit of Claire McLelland; Annexure CM-30, pages 205 - 257.

   [51] Affidavit of Claire McLelland; Annexure CM-7, page 62.

   [52] Affidavit of Claire McLelland; Annexure CM-7, page 59.

   [53] Affidavit of Claire McLelland; Annexure CM-7, page 62; Affidavit of Claire McLelland; Annexure CM-7, pages 62 - 63.

   [54] Affidavit of Claire McLelland; Annexure CM-7, page 64.

1. In Swancare, Pritchard J, in finding that the retirement villages were separate, said:[55]

   [I]t will be a question of fact and degree whether there are separate complexes (and thus separate retirement villages).

   …the complex of residential premises and appurtenant land comprising each village is, and has always been, geographically separate…

   …the complexes of residential premises at each location has always had its own facilities, and its own social club, for residents.

   …those responsible for SwanCare's management and control treated the complexes as discrete retirement villages.

   [55] Swancare [66] - [68].

2. Upon application of the principles in Swancare, the evidence detailed above clearly establishes that each of Thomas Perrott Village and Taylor Dallimore Village, being the subjects of the Memorial, were separate 'retirement villages'.

Was there a single overarching 'retirement village scheme' pursuant to which multiple 'retirement villages' were established?

1. In the case of Swancare, the Amana Case, and the Second Amana Case, the question of whether a 'single retirement village scheme' (defined in s 3(1) of the RVA) can regulate multiple distinct retirement villages was left open. The question did not require answering as, in the words of Pritchard J:[56]

   the evidence supports the conclusion that the retirement villages on the Bentley land and the Carlisle land have always been occupied under, and used for or in connection with, separate retirement village schemes.

   [56] Swancare [144].

2. In this instance, the individual retirement villages are comparable to those in each of the cases to which I have referred. In fact, the distance between the Thomas Perrott Village and Taylor Dallimore Village is greater than the distances in the Swancare case.  Further, similar to the First Amana Case, the types of care and accommodation offered by Southern Cross in each of the villages differ significantly.

3. I find that the evidence supports the conclusion that there is not a single unifying 'retirement village scheme' which applies to Thomas Perrott Village and Taylor Dallimore Village - each complex had its own bespoke village scheme.

Conclusion and correction of the Register

1. I find that:

   (1)Southern Cross operates a retirement village pursuant to the RV Act on the on the parcel of land representing Thomas Perrott Village.

   (2)Southern Cross formerly operated a retirement village pursuant to the RV Act on the parcel of land representing Taylor Dallimore Village, however that village has been demolished and the parcel of land is now vacant.

   (3)Each of the parcels of land the subject of the Memorial were in 1992, and remain, separate complexes.

   (4)There are multiple, separate 'retirement village schemes' in place in respect of the parcels of land the subject of the Memorial on which retirement villages operate.

   (5)The Memorial was registered over multiple, separate complexes in error.

2. Section 188(3) of the TLA provides:

   (1)The Registrar shall upon the direction of the Commissioner correct errors in the Register or in entries made therein or in duplicate certificates (in cases of paper titles) or instruments or graphics and may supply entries omitted to be made under the provisions of this Act.

3. Memorial E996555 is an instrument which is amenable to correction by the Registrar of Titles, on the direction of the Commissioner of Titles, pursuant to s 188(3) of the TLA.

4. It is therefore appropriate that I make the following orders sought in Southern Cross' originating summons filed 6 June 2024:

   1.A declaration that the Register maintained under section 48 of the Transfer of Land Act 1893 (WA) contains errors in respect of:

   a)Memorial E996555 (within the meaning of section 15 of the Retirement Villages Act 1992 (WA)), which erroneously purports to aggregate under a single memorial multiple, separate 'retirement villages' (within the meaning of section 3 of the Retirement Villages Act 1992 (WA)) established and operating or formerly operated on multiple, separate parcels of land, and;

   b)the correspondingly endorsed certificates of title set out in the First Schedule, which certificates of title erroneously indicate that the land the subject of the certificates of title:

   i.is part of a single 'retirement village' (within the meaning of section 3 of the Retirement Villages Act 1992 (WA)) also comprising each of the other parcels of land endorsed by the respective single memorial, and;

   ii.may be encumbered by such unregistered statutory charges as may arise under section 20(1) of the Retirement Villages Act 1992 (WA) in respect of any 'premiums' paid by residents or former residents of other, separate retirement villages also erroneously the subject of a single memorial.

   2.A declaration that section 188(3) of the Transfer of Land Act 1893 (WA) empowers the First Defendant to direct the Second Defendant, and the Second Defendant to comply with such direction, to correct the errors in the Register by expunging Memorial E996555 from all of those certificates of title which Memorial E996555 currently endorses (which are listed in the First Schedule).

   3.A declaration that the Plaintiff is required, on or before the expunging of Memorial E996555, to lodge a new and separate registrable memorial over the parcel of land described in the Second Schedule under section 15 of the Retirement Villages Act 1992 (WA).

   4.There be no order as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

RP

Associate to the Honourable Justice Whitby

10 SEPTEMBER 2024

JAO-6, pages 22 - 62; Annexure JAO-8, pages 63 - 93.

Annexure CM-2, page 17.

Annexure CM-24, page 156.

pages 13 - 14; Affidavit of Jade Ashlee Olynyk [25(b)], [28(b)]; Annexure JAO-10, page 119; Annexure JAO11, pages 126 - 127.

MGB-9, pages 56 - 69; Affidavit of Jade Ashlee Olynyk [22(c)], [31(c)]; Annexure JAO-9, pages 100 - 113;
Annexure JAO-12, pages 140 - 170.

Ashlee Olynyk [13(c)], [16(c)]; Annexure JAO-5, pages 20 - 21.

Annexure CM-42, pages 440, 443; Annexure CM-43, pages 490, 493; Annexure CM-44, pages 543, 546; Annexure CM-45, pages 600, 603; Annexure CM-46, pages 649, 652; Annexure CM-47, pages 709, 712; Annexure CM-48, pages 781, 784, 839, 844; Annexure-49, pages 863, 866; Annexure CM-50, pages 934, 937; Annexure CM-51, pages 1006, 1009; Annexure CM-52, pages 1067 - 1068; Annexure CM-53, pages 1170, 1133 ‑ 1134, 1166; Annexure CM-54, pages 1254 - 1255, 1266; Annexure CM-56, pages 1300 - 1302; Annexure CM-58, pages 1346 - 1347; Annexure CM-59, pages 1380 - 1382; Annexure CM-60, pages 1425 ‑ 1427; Annexure CM-61, pages 1451 - 1452, Annexure CM-62, pages 1500, 1504; Annexure CM-66, page 1637.

Annexure CM-43, pages 514 - 515; Annexure CM-44, pages 573 - 574; Annexure CM-45, pages 625 - 626; Annexure CM-46, pages 673 - 674, 676; Annexure CM-47, pages 730, 732; Annexure CM-48; pages 807 - 809; Annexure CM49, pages 888 - 890; Annexure CM-50, pages 939, 960; Annexure CM-51, pages 1030 - 1032; Annexure CM-52, pages 1078 - 1079; Annexure CM-53, pages 1144, 1149; Annexure CM-61, pages 1457 ‑ 1458; Annexure CM-63, pages 1532 - 1533; Annexure CM-66, pages 1651 - 1652; Annexure CM-67, pages 1688 - 1689; Annexure CM-68, pages 1816 - 1817; Annexure CM-70, pages 1908 - 1909.