Summerfield-Sinn v Holy Spirit Care Services
[2011] QCAT 259
•6 June 2011
| CITATION: | Summerfield-Sinn v Holy Spirit Care Services [2011] QCAT 259 |
| PARTIES: | Ms Bernice Summerfield-Sinn |
| v | |
| Holy Spirit Care Services |
| APPLICATION NUMBER: | OCL035-11 OCL109-10 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | 27 May 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Member |
| DELIVERED ON: | 6 June 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Application dismissed. |
| CATCHWORDS: | JURISDICTION – where application for injunction and/or specific performance – whether tribunal has jurisdiction RETIREMENT VILLAGES – where scheme operator changed location of lounge – whether scheme operator had a right to do so – whether scheme operator required to give notice – whether the Public Information Document required strict compliance – meaning of “existing” in PID Queensland Civil and Administrative Tribunal Act 2009, s 59 Retirement Villages Act 1999, ss 3(1)(a)(ii), 21, 22, 36, 37, 76, 78, 79, 108, 191 Filmer & ors v Carlyle Gardens Retirement Village Pty Ltd [2009] QCCTRV 2 Power & certain residents of Sunnymeade Retirement Village v Jomal Pty Ltd [2008] CCT VH003-07 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Les Armstrong, agent |
| RESPONDENT: | Mr Michael Vickery, solicitor Minter Ellison |
REASONS FOR DECISION
Ms Summerfield-Sinn has been a resident of Coral Sea Gardens since June 2004. The Village is operated by Holy Spirit Care Services. Ms Summerfield-Sinn’s application asserts that on 8 April 2010, Holy Spirit Care Services removed furniture from a resident’s lounge near her apartment, locked the door and placed a notice on it stating “Staff Meeting Room.” It is further asserted that the residents have not had access to that space since April 2010. Ms Summerfield-Sinn wants the tribunal to order:
a)Holy Spirit Care Services restore the lounge that existed when she entered the village.
b)Holy Spirit Care Services be restrained from removing the lounge area and from restricting residents’ access to the lounge area, without first obtaining the consent of all residents whose contracts require the continued existence of the lounge area.
Jurisdiction
The nature of relief sought by Ms Summerfield-Sinn is in the nature of an order for specific performance or an injunction. In searching for decisions that applied to these proceedings, the decision of Filmer & ors v Carlyle Gardens Retirement Village Pty Ltd[1] came to my attention. I invited the parties to address me on the effect of that decision on these proceedings. Holy Spirit Care Services submits that the tribunal has no jurisdiction.
[1] [2009] QCCTRV 2.
Ms Summerfield-Sinn’s agent points out that, unlike the Commercial and Consumer Tribunal, the tribunal has power to grant injunctions[2]. It is important to remember, however, that the tribunal has only the jurisdiction given to it by the enabling Act.[3] If the Retirement Villages Act 1999 does not confer jurisdiction, the additional power given to the tribunal by s 59 of the Queensland Civil and Administrative Tribunal Act 2009 is irrelevant.
[2] Section 59 Queensland Civil and Administrative Tribunal Act 2009.
[3] Sections 15(b) and 17(1) QCAT Act.
Section 191 of the RV Act 1999 gives the tribunal power to make an order for a party to do or not do, anything in relation to a retirement village issue. “Retirement village issue” is defined with respect to a retirement village dispute[4]; 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 the RV Act and includes a dispute about compliance by a scheme operator or a resident with the RV Act, whether or not a particular failure to comply is an offence against the RV Act[5].
[4] Section 22 RV Act.
[5] Section 21 RV Act.
This is a very different situation from that in Filmer, where the tribunal found that the dispute was not a retirement village dispute. Ms Summerfield-Sinn is asking the tribunal to decide about the rights and obligations of the parties pursuant to her agreement. She is also arguing that Holy Spirit has not complied with its obligations under the RV Act. Clearly, this is a retirement village dispute. Section 191 does give this tribunal the power to make orders as contemplated by Ms Summerfield-Sinn’s application.
Substantive matters
Ms Summerfield-Sinn’s application fails for other reasons. The argument is a three-step process:
(a)Because the Public Information Document Ms Summerfield-Sinn received states in paragraph 2.8 that:
“The scheme operator will provide the following existing facilities to residents:
·Gardens;
·Emergency call access facilities;
·Pool and Spa;
·Library;
·Lounge;
·Hall/Dining Room;
·Billiard Room;
·Chapel
this means that Holy Spirit Care Services must provide the lounge as it existed at the time Ms Summerfield-Sinn signed the residents agreement in that same place and in that same configuration and without change.
(b)Section 36 of the RV Act requires a scheme operator to disclose any inaccuracy in a Public Information Document if it becomes inaccurate in a way that may materially affect the interests of the resident. The change in the location of the lounge was an inaccuracy that materially affected Ms Summerfield-Sinn’s interests.
(c)The provision of new services can only be approved through the mechanism of section 108 of the RV Act.
The Public Information Document
Ms Summerfield-Sinn pointed out that s 37 of the RV Act provides that the Public Information Document forms part of the resident’s contract and that, if there is an inconsistency between the Public Information Document and the contract, the more beneficial provision prevails.
Holy Spirit Care Services argues that it enough to provide facilities of each description that are “generally in accordance with” that which existed at the time Ms Summerfield-Sinn entered into her resident’s agreement. To support that argument, Mr Vickers, on behalf of Holy Spirit Care Services, pointed to:
a) That the list of facilities is generally, not specifically, worded.
b) The pro forma Public Information Document provided by the Office of Fair Trading similarly describes facilities in a general way.
c) “facilities” is not defined in the RV Act, nor is there a definition for any of the facilities referred to, such as “lounge”.
d) There is no map or site plan showing the location of the facilities attached to the Public Information Document.
e) Such an interpretation would [in my terminology] “set the development in aspic” so that a scheme operator would be unable to make any changes to the village without the residents’ approval.
Ms Summerfield-Sinn contends there is support for her argument from the ordinary meaning of the word “existing”. One of the ordinary meanings of “exist” in the Macquarie Dictionary is:[6]
“to have being in a specified place or under certain conditions”.
[6] Fifth Edition, 2009, Macquarie Dictionary Publishers Pty Ltd, Sydney.
[10] It should be noted, however, that the primary meaning given is:
“To have actual being, be”.
[11] Even though there is a potential for the existence of a facility to be conditional upon place or conditions, there is no sense from the ordinary meaning of the word that there is an element of continuity. Put simply, the fact of existence today does not, of itself, imply a requirement to exist tomorrow.
[12] Ms Summerfield-Sinn’s agent conceded that it could not have been intended that “existing facilities” meant that the village operator could never change the plants in the garden, or that it had to continue to provide an outdated emergency call system when a better one was available. I do not see how “existing” can have two different meanings within the same sentence. Either the parties are strictly bound to keep what facilities were available at the time of entry into the agreement or there is some flexibility to allow the village operator to provide something that is substantially the same as what existed at the time of the agreement.
[13] I prefer the view that there is some latitude in the provision of existing facilities. To interpret “existing” in any other way would unduly restrict the operation of the village to the possible disadvantage of the residents and is contrary to the general statements, and lack of detail, provided in the Public Information Document. The interpretation I favour would not countenance the removal of a facility or the reduction of a facility to the extent that it no longer functioned as intended but this is not what happened to Ms Summerfield-Sinn.
Section 36
[14] Ms Summerfield-Sinn argues that the meaning of “existing” facilities has an element of future existence is supported by section 36 of the RV Act. Section 36 applies if the particulars in a public information document become inaccurate in a way that may materially affect the interests of a resident of the retirement village to which the public information document relates. In that case, within 28 days of the inaccuracy coming to the scheme operator’s attention, the scheme operator must make a full written disclosure of the inaccuracy to the chief executive and to each resident of the retirement village who is, or is likely to be, materially affected by the inaccuracy.
[15] One of the stated objects of the RV Act is[7]:
“facilitating the disclosure of information to prospective residents of a retirement village to ensure the rights and obligations of the residents and the scheme operator may be easily understood.”
[7] Section 3(1)(a)(ii).
[16] As Mrs Spender pointed out[8], the Public Information Document is directed to future residents, not existing residents:
The PID is at the heart of the legislative scheme of the Act which is focused on consumer protection. The approved PID ensures that prospective residents of a retirement village are given before they enter into a residence contract an explanation in clear and simple terms of their rights and obligations under the Act and the residence contract. The legislature intended in my view that prospective residents should be able to read the PID, without having to resort to a definition section in the Act, and clearly understand their financial obligations.
[8]Power & certain residents of Sunnymeade Retirement Village v Jomal Pty Ltd [2008] CCT VH003-07 at [32].
[17] The consequences of non-compliance with section 36 is a penalty. The section, of itself, does not give residents, whether existing or prospective, any additional rights in relation to the enforcement or termination of the residents’ agreement.
[18] At the hearing, I asked Ms Summerfield-Sinn’s agent to point me to the evidence that Ms Summerfield-Sinn has had her interests materially affected. He could not provide me with any evidence to that effect. In that case, the provisions of section 36 do not apply. In any event, I am not persuaded that section 36 has the effect that Ms Summerfield-Sinn contends.
Section 108
[19] Section 108 requires that any new service proposed by the scheme operator, for which it may impose a service charge, must be approved by the residents by special resolution.
[20] Ms Summerfield-Sinn argues that “services” extends to a new facility; that the change of the location of the lounge amounts to a new facility; and that there is a potential for Holy Spirit to levy a charge for the new facility.
[21] “Services” is not defined in the RV Act but there are clear guidelines about the provision and cost of “services”[9] as distinct from “facilities”[10]. I can find no support for an argument that “services” should be read widely to include the provision of a new facility.
[9] See, for example, ss 76 and 78.
[10] See, for example, s 79.
[22] Even if I found that the changed location of the lounge amounts to a new facility, it has been in that location since October 2009 and there is no evidence that Holy Spirit has, or will, introduce a new charge for its use. Section 108 does not assist Ms Summerfield-Sinn.
[23] The Public Information Document is an important document, providing certainty to prospective residents. Neither the scheme operator nor the residents would benefit from the restrictive interpretation urged upon me by Ms Summerfield-Sinn, which would restrict the natural renewal and refurbishment process of the village. The application should be dismissed.
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