Sowden v Bethany Christian Care - [2024] QCAT 171

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Sowden v Bethany Christian Care [2024] QCAT 171

PARTIES:

GREGORY KEITH SOWDEN

(applicant)

v

BETHANY CHRISTIAN CARE

(respondent)

APPLICATION NO/S:

OCL068-23

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

11 April 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

Proceeding dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where applicant resided in a retirement village – where respondent was an operator of a retirement village – where retirement village closed under an approved closure plan – where applicant disputes the payment of an exit fee following closure of retirement village – where no pre-proceeding dispute resolution process undertaken – where respondent brings an application to dismiss the proceeding due to the absence of a pre-proceeding dispute resolution process – whether dispute exempt from requirement for pre-proceeding dispute resolution process – consequence of non-compliance with pre-proceeding dispute resolution process

Acts Interpretation Act 1954 (Qld), s 35C(1).

Retirement Villages Act 1999 (Qld) s 21, s 22, s 40, s 40B, s 41, s 53, s 58, s 59, s 60, s 63, s 65, s 67, s 154, s 157, s 169, s 170, s 171, s 173, s 209

Retirement Villages Regulation 2018 (Qld) s 5

A and C G Lee Pty Ltd v Collier [2019] QCAT 30 Armstrong v Kawana Island Retirement Village [2014] QCAT 51

Burinpipat Pty Ltd t/as Chili Coco v FFTOA Pty Ltd [2016] QCAT 100

Wilson v LP and MJ Pty Ltd [2019] QCATA 82

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

This proceeding is about a retirement village dispute.
Bethany Christian Care (Bethany) has applied to dismiss the proceeding brought by Mr Sowden.
Bethany says that Mr Sowden failed to engage in the pre-proceedings dispute resolution process mandated by the Retirement Villages Act 1999 (Qld) (RV Act) before commencing the proceeding. Bethany says that the consequence of such non-compliance is that the proceeding must be dismissed.
The application falls to be determined on the papers.
What is the issue to be determined?
Bethany operated a retirement village in Brisbane. A decision was made by Bethany to close the retirement village. It is not controversial that a closure plan, mandated by the RV Act, was subsequently approved and implemented. The plan included the termination of Mr Sowden’s residence contract. The residence contract provided for the payment by the respondent to Mr Sowden of an exit entitlement upon termination. Mr Sowden disputes the amount paid to him by the respondent and says that an exit fee was deducted by the respondent. Mr Sowden says that the respondent was not entitled to deduct the exit fee. This is the substance of the dispute.
The determination of the application turns principally on a single point – was Mr Sowden required to comply with the pre-proceedings mediation requirements set…

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: [2024] QCAT 171
Decision Date: 11 April 2024

CaseChat Overview and Summary

The applicant, Mr Sowden, filed a proceeding against the respondent, Bethany Christian Care, an operator of a retirement village, in the Queensland Civil and Administrative Tribunal (QCAT). The dispute arose after Mr Sowden was required to pay an exit fee following the closure of the retirement village under an approved closure plan. The respondent applied to dismiss the proceeding, arguing that Mr Sowden failed to comply with the pre-proceeding dispute resolution process mandated by the Retirement Villages Act 1999. The Tribunal was tasked with determining whether the dispute was exempt from the requirement for pre-proceeding dispute resolution and whether Mr Sowden's failure to comply with this process was fatal to the proceeding.

The court examined whether the dispute was exempt from the requirement for pre-proceeding dispute resolution under the Retirement Villages Act 1999. Mr Sowden argued that his failure to comply with the statutory requirement to give a dispute notice to the registrar within four months after the payment of the exit entitlement was not fatal to the proceeding. He also claimed that participation in the formal mediation process was not mandatory but discretionary. The court noted that the Act required compliance with the pre-proceeding mediation provisions unless the subject matter of the proceeding fell within the scope of section 171, which pertains to the payment of an exit entitlement. The court determined that Mr Sowden's failure to comply with the mediation process was fatal to the proceeding because the subject matter did not fall under section 171.

The court concluded that Mr Sowden's failure to comply with the pre-proceeding dispute resolution process resulted in the Tribunal lacking jurisdiction over the proceeding. The filing of the originating application did not confer jurisdiction upon the Tribunal, and section 222 of the Act did not confer any additional jurisdiction beyond what was specified. As the proceeding was misconceived and lacked substance, the court dismissed the proceeding pursuant to section 47 of the QCAT Act. Consequently, the court made orders dismissing the proceeding.

Orders

Orders of the court

Proceeding dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Mr Sowden failed to comply with the requirements of part 9 and part 10 of the Act before commencing the proceeding. In the absence of compliance, the Tribunal does not have jurisdiction in respect of the dispute. Conclusion and orders In the absence of jurisdiction, the proceeding is misconceived and lacks substance and should be dismissed pursuant to s 47 of the QCAT Act. I make orders accordingly.

Ratio Decidendi

Legal Principle Established

Mr Sowden says that his failure to comply with s 157(3) and give a dispute notice to the registrar within 4 months after the payment of the exit entitlement is not fatal to the proceeding. He says that participation in the formal mediation process is not mandatory but discretionary, relying on the use of the word ‘may’ in s 157(1). Consideration Before addressing the substantive issues it is necessary to deal with two of Mr Sowden’s contentions. Mr Sowden’s reliance upon the filing of the originating application as invoking the jurisdiction of the Tribunal is without substance. Mr Sowden cites no authority in support of such a proposition. An application for a retirement village dispute may be decided by the Tribunal only if the Tribunal has jurisdiction to decide the dispute in accordance with the provisions of the RV Act. To suggest that the filing of the originating application of itself confers jurisdiction on the Tribunal is entirely misconceived. Mr Sowden’s submissions regarding the application of s 222 are similarly misconceived. Contrary to Mr Sowden’s submissions, s 222 does not operate to confer upon the Tribunal any general jurisdiction additional to the specific jurisdiction conferred by the RV Act. Rather, s 222 preserves the rights of parties to a residence contract to enforce entitlements and remedies under a law other than the RV Act and in a forum other than QCAT. I turn now to the issue of the subject matter of the proceeding. In the originating application Mr Sowden states that the dispute is one in relation to the payment of an exit entitlement. His submissions reinforce this position. Section 171 of the RV Act provides:171 Former resident may apply for order for payment of exit entitlement(1) This section applies if—(a)a retirement village scheme operator fails to comply with former section 58(2) or section 59A(4), 60(2), 65 or 67(2); and(b)a former resident of the retirement village is materially prejudiced by the failure.(2) The former resident may apply to the tribunal for an order that the operator pay to the former resident the former resident’s exit entitlement.(3) In this section—former section 58(2) means section 58(2) as in force immediately before the commencement and applied in relation to a current residence contract under section 237K. It is not controversial as between the parties that if the subject matter of the proceeding falls within s 171, compliance with the pre-proceeding mediation provisions of the Act was not required before the proceeding was commenced. Section 171 is engaged if both limbs of s 171(1) are satisfied. Firstly, there must be a failure by a retirement village scheme operator to comply with former s 58(2), or s 59A(4), s 60(2), s 65 or s 67(2). Secondly, the former resident must be materially prejudiced as a result of such failure. The former s 58(2), and s 59A(4) and s 65, which relate to work necessary to reinstate or renovate an accommodation unit, and the scheme operator’s obligation to specified give information to a former resident relevant to the sale of the right to reside in an accommodation unit, have no application for present purposes. That leaves for consideration s 60(2) and s 67(2).