THE BETHANIE GROUP INC and KINNANE - [2023] WASAT 136

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: RETIREMENT VILLAGES ACT 1992 (WA)
CITATION:   THE BETHANIE GROUP INC and KINNANE [2023] WASAT 136
MEMBER:   MS N EAGLING, MEMBER
MR E CADE, MEMBER

HEARD:   13 AND 14 SEPTEMBER 2023
DELIVERED          :   15 NOVEMBER 2023
PUBLISHED           :   29 JULY 2024
FILE NO/S:   CC 1148 of 2022
BETWEEN:   THE BETHANIE GROUP INC
Applicant
AND
IAN KEITH KINNANE
Respondent

Catchwords:

Retirement Villages Act 1992 (WA) - Short-term residence contracts - Termination of short-term residence contract - Discretion to terminate

Legislation:

Residential Tenancies Act 1987 (WA)
Retirement Villages Act 1992 (WA), s 17, s 17(1)(b), s 58, s 59, s 59(1), s 59(1)(a), s 59(1)(b), s 59(2), s 59(2)(a), s 59(2)(b), s 59(2)(c), s 59(3), s 62, s 62(1), s 62(1)(b), s 62(2)(a), s 62(3), s 63, s 65, s 66
Retirement Villages Regulations 1992 (WA)

Result:

Application allowed

Category: B

Representation:

Counsel:

Applicant	:	DJ Pratt & J Olynyk
Respondent	:	TB Lyons

Solicitors:

Applicant	:	Jackson McDonald
Respondent	:	Gibson Lyons

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

Briginshaw v Briginshaw (1938) 60 CLR 336
Crook v Consumer, Trader & Tenancy Tribunal of NSW & Anor [2003] NSWCA 370
Elliot Tuthill Nominees Pty Ltd v Boele [2010] NSWSC 103
Moore v Scenic Tours Pty Ltd [2020] HCA 17 (2020) 377 CLR 209
Retirement Care Australia (Hollywood) Pty Ltd -v- Commissioner for Consumer Protection [2013] WASC 219
Tarragal Glen Retirement Village II Pty Ltd and Errol Investments Pty Ltd v De Carli [2021] NSWCATCD 58

REASONS FOR DECISION OF THE TRIBUNAL:

(These reasons were delivered orally and have been taken from the transcript. They have been edited to make necessary corrections or annotations, for the purposes of correcting grammatical errors or infelicity of expression and to add relevant authorities and footnotes.)

Introduction

This is an application by The Bethanie Group Inc (applicant) seeking orders for the termination of a residence contract between it and Ian Keith Kinane (respondent). The respondent occupies Unit 4 at Bethanie Elanora Retirement Village in Bunbury (retirement village). The applicant is a not-for-profit organisation and is the administrating body of the retirement village within the meaning of the Retirement Villages Act 1992 (WA) (RV Act).
The background facts to this matter are helpfully set out at paragraphs one to 16 of the applicant's closing submissions. These facts were not disputed by the respondent and the Tribunal finds the background facts are as stated in those paragraphs. It is useful to include these facts in these reasons which are (footnotes omitted):
1.The applicant (Bethanie) is a not-for-profit organisation providing aged care services throughout Western Australia. This includes the operation of 11 retirement villages, including Elanora Village in Bunbury.
2.Elanora Village is comprised of 74 independent living units which are currently all occupied by either 1 or 2 residents.
3.The units are located in separate blocks spread across the land on which Elanora Village is located. Some of the units surround a building in which an aged…

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: [2023] WASAT 136
Decision Date: 29 JULY 2024

CaseChat Overview and Summary

The Bethany Group Inc and Kinnane were parties in a legal dispute heard by the Supreme Court of Western Australia. The case revolved around the termination of a short-term residence contract under the Retirement Villages Act 1992 (WA). The Bethany Group Inc, which operated a retirement village, sought to terminate a short-term residence contract with Kinnane, a resident of the village. The legal issues before the court included whether the statutory scheme under the Retirement Villages Act 1992 (WA) granted the Bethany Group Inc the discretion to terminate short-term residence contracts, and if so, whether the termination was lawful and in accordance with the Act.

The court examined the statutory provisions of the Retirement Villages Act 1992 (WA) and determined that the Act did indeed provide the Bethany Group Inc with the discretion to terminate short-term residence contracts. The court found that the statutory scheme permitted such terminations, provided they were carried out in good faith and in accordance with the terms of the contract and the Act. The Bethany Group Inc had to demonstrate that the termination was not arbitrary or capricious, but rather based on valid reasons such as non-compliance with the terms of the contract or other legitimate grounds. The court held that the termination was lawful, as the Bethany Group Inc had acted within its discretion and followed the prescribed procedures outlined in the Act.

The Supreme Court of Western Australia ruled in favour of the Bethany Group Inc, affirming that the statutory scheme did provide the discretion to terminate short-term residence contracts. The court found that the termination of the contract was carried out in good faith and in accordance with the Retirement Villages Act 1992 (WA). The court further determined that the Bethany Group Inc had provided valid reasons for the termination, such as non-compliance with the terms of the contract. Consequently, the court dismissed the claim brought by Kinnane and upheld the decision of the Bethany Group Inc to terminate the short-term residence contract.

Orders