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 care facility managed by the applicant operates.
4.From about 26 March 2018, the respondent (Mr Kinnane) has occupied unit 4 at Elanora Village.
5.Originally, Mr Kinnane occupied unit 4 pursuant to an agreement dated 30 April 2018 whereby Bethanie permitted Mr Kinnane to occupy unit 4 for a fixed term of 12 months commencing on 26 March 2018 and expiring on 25 March 2019.
6.On 25 March 2019, the short-term rental agreement expired. However, the respondent did not vacate unit 4 and remained in occupation of it.
7.On or about 11 June 2019, the applicant and the respondent executed a second written short-term rental agreement whereby the applicant permitted the respondent to occupy unit 4 for a fixed term of 12 months commencing on 11 June 2019 and expiring on 10 June 2020 (Residence Contract).
8.Following the expiry of the term of the Residence Contract on 10 June 2020, Mr Kinnane remained in occupation of unit 4 and continued to pay rent.
9.In about July 2020, Bethanie offered Mr Kinnane a further residence contract.
10.On 5 October 2020, Bethanie notified Mr Kinnane that the offer of a further residence contract was withdrawn and gave Mr Kinnane one month's notice to vacate.
11.On 1 November 2020, Bethanie sent a letter to Mr Kinnane to the effect that Bethanie was willing to temporarily retract the notice to vacate dated 5 October 2020 subject to Mr Kinnane agreeing to certain conditions, including that there be no further instances from him of aggressive or unacceptable behaviour impacting staff or other residents, with compliance with those conditions to be reviewed by Bethanie on a month-to-month basis.
12.Bethanie's letter of 1 November 2020 requested Mr Kinnane to sign and return an acknowledgement to the Village Manager, Ms Ferguson if he was agreeable to the specified conditions. A signed copy of the requested acknowledgement was not produced in evidence by any party. However, in crossexamination, Mr Kinnane gave evidence to the effect that he signed and returned it as requested.
13.In November 2021, Bethanie offered Mr Kinnane a further residence contract for a term of 6 months. Mr Kinnane's legal adviser sought some amendments to the proposed further residence contract, and Bethanie subsequently advised that it did not wish to proceed with a further contract.
14.On 16 May 2022, Bethanie issued to Mr Kinnane a written notice to vacate giving him 60 days to vacate unit 4 (i.e. by 15 July 2022).
15.Mr Kinnane failed to vacate unit 4 by 15 July 2022 and remains in occupation of it.
16.By application to the Tribunal made 26 August 2022, Bethanie has sought orders for the termination of any continuing residence contract between it and Mr Kinnane and for possession of unit 4.
The applicant relies on four alternative grounds on which it seeks orders for the termination of the respondent's residence contract and for the respondent to give vacant possession of Unit 4. These are:
(1)pursuant to s 59(2)(a) of the RV Act for breach of an implied term to vacate within a reasonable time;
(2)pursuant to s 59(2)(a) of the RV Act for breach of contract and residence rules;[1]
(3)pursuant to s 62(1)(b) of the RV Act by recklessly causing injury and is likely to intentionally cause injury to Ferguson, Pomaybo, Ducic and/or other residents; and
(4)pursuant to s 59(2)(c) of the RV Act on the grounds that in all the circumstances of the case it is otherwise appropriate to make such orders.
[1] Published by the applicant as the 'Village Rules', but referred to in the RV Act and these reasons as the residence rules.
A further ground (originally ground 1) for an order for possession because the respondent's right of occupation has expired was abandoned by the applicant at the commencement of the hearing.
For the reasons that follow, the Tribunal has determined that the respondent has breached the residence rules of the retirement village and that the breach is such as to justify termination by the Tribunal of the residence contract and to require the respondent give vacant possession of Unit 4. The Tribunal also finds that the respondent is likely to intentionally cause physical injury to other residents or employees in the retirement village.

Issues for determination

The issues to be determined by the Tribunal are as follows:
(1)What is the residence contract that the respondent is currently residing under?
(2)Is there a basis for implying a term into that contract that the premises must be vacated within a reasonable time?
(3)Should the Tribunal make an order terminating the residence contract under s 59 of the RV Act on the basis that it is satisfied that there has been a breach of r 10 of the residence rules?
(4)Should the Tribunal make an order terminating the residence contract under s 62 of the RV Act on the basis that it is satisfied that the applicant has intentionally or recklessly caused or permitted or is likely to intentionally or recklessly cause or permit injury to the operator or an employee of the operator or to any other resident?

The hearing

The hearing in this proceeding was held on 13 and 14 September 2023. Both the applicant and the respondent were legally represented at the hearing.
While the application took considerable time to reach hearing this is because the applicant and the respondent commendably made considerable efforts to mediate this dispute and participated in mediation conferences at the Tribunal on three separate occasions, including on one date which had been scheduled for the hearing of the application.
The applicant called seven witnesses at the hearing. These were:
(1)Lynette Ferguson, manager of the retirement village;
(2)Nadine Lohse (formerly White), former general manager of administering body;
(3)Katie Marie Stagg, former regional manager of the administering body;
(4)Robert Cumberworth, support service manager at the retirement village;
(5)Marlene Jeffery, resident of the retirement village;
(6)Jozef Pomaybo, resident of the retirement village; and
(7)Debbie Ducic, resident of the retirement village and Jozef Pomaybo's partner.
Witness statements from two further witnesses, Christine Sheila McRae and Lynette Ray Sharman, both residents of the retirement village, were filed by the applicant with the Tribunal however as they did not give evidence in person, limited weight is to be placed on their evidence.
The respondent gave evidence on his own behalf but called no other witnesses. The respondent had indicated that his general practitioner Dr Hendrik Gildenhuys would give evidence via video link, but he did not do so. A letter from Dr Gildenhuys dated 7 June 2022 which was in the Matter Book was admitted into evidence, subject to weight.
The Matter Book, consisting of 769 pages, was admitted as Exhibit 1. Two videos taken by Ms Ducic of an incident which took place on 31 March 2023 were also tendered and were admitted as Exhibit 2. A further proposed short written residence contract was also tendered by the respondent and admitted as Exhibit 3.
At the conclusion of the hearing both the applicant and respondent were given an opportunity to make closing submissions. Both elected to provide the Tribunal with written closing submissions and did so.
An issue arose at the commencement of the hearing as to the standard of satisfaction that is applicable in this hearing. After consideration of the matter including the submissions and cases cited by the parties on this issue, the Tribunal is persuaded that the correct standard of satisfaction is the civil standard unaffected by the Briginshaw principles.[2]
[2] Briginshaw v Briginshaw (1938) 60 CLR 336.

Retirement village residence contracts

A short-term residence contract at a retirement village will usually require payment of rent and certain levies by a resident. By contrast, a long-term residence contract will usually require payment of a significant premium on entry into the retirement village in addition to rent and levies: Retirement Care Australia (Hollywood) Pty Ltd -v- Commissioner for Consumer Protection [2013] WASC 219 (Retirement Care) at [28] - [31]. Long-term residence contracts are often for the term of the life of the resident.
Evidence was given to the Tribunal that short-term residence contracts are not common in the retirement village sector, and that they are most often used to provide accommodation to elderly persons as a form of affordable housing, presumably for those elderly people who are not able to afford the premium required by a long-term contract.[3]
[3] Evidence of Ms Lohse; ts 62, 13 September 2023.
The RV Act and the Retirement Villages Regulations 1992 (WA) (RV Regulations) do not distinguish between short-term and long-term residence contracts other than by defining short-term contracts as those which are for a period of 12 months or less, and requiring certain modification to the Form 1A and the schedule of general provisions that are to be included in such a contract[4]. Both long-term and short-term residence contracts over a residence within a retirement village are governed by the RV Act and not by the Residential Tenancies Act1987 (WA) (RT Act).
[4] Rule 7A(1) modified by r. 7A(2), r. 7C(1) modified by 7C(2), r. 7D(1) modified by 7D(2) and r. 7F(1) modified by 7F(2).
By provisions which are applicable to both short and long-term residence contracts, the RV Act:
(a)permits the termination of a residence contract by an administering body only in the circumstances specified in s 17, s 58[5], s 59, s 62 and s 63[6] of the RV Act;
(b)prohibits an administering body from entering residential premises occupied by a resident of a retirement village under a residence contract for the purpose of recovering possession of the premises, unless this is authorised by a judgment, warrant or order of a court or this Tribunal (s 66 of the RV Act); and
(c)prohibits an administering body from commencing proceedings in a court for the recovery of possession of residential premises occupied by a resident of a village under a residence contract (s 65 of the RV Act).
[5] Section 58 of the RV Act relates to termination of occupation on medical grounds and is not relevant to this proceeding.
[6] Section 63 of the RV Act relates to termination of a residence contract where the administering body would otherwise suffer undue hardship and is not relevant to this proceeding.
Significantly, the RV Act does not prescribe how an administering body is to obtain vacant possession of a residence in a retirement village upon the expiration of a short-term residence contract. Should such a resident refuse to vacate their residence the administering body must make an application to this Tribunal for an order terminating the residence contract and for consequential orders for the residence to be vacated by a date determined by the Tribunal.
This has the consequence that an occupant of a premises in a retirement village, whether their occupancy is pursuant to either an expired fixedterm residence contract or a current life-term residence contract, can only be required to vacate their residence by an order of this Tribunal.

Relevant statutory provisions

Section 17 of the RV Act sets out when a residence contract can be terminated. It provides relevantly as follows:
17.Termination of residence rights
(1)… the right of occupation cannot be terminated unless —
(a)the resident dies; or
(b)the residence contract is terminated by the resident in accordance with the residence contract or under this Act; or
(c)the resident abandons the residential premises; or
(d)the residence contract is terminated by the State Administrative Tribunal under this Act; or
(e)…
(2)Sections 57, 65 to 70, the rights of termination of residence contracts under subsection (1)(a), (b), (c) and (d) and of recovery of possession of residential premises under this Act are subject to any rights of a resident of a retirement village –
(a)arising because the resident is the owner of residential premises; or
(b)acquired under a contract between the administering body and the resident[.]
Section 59 permits this Tribunal to terminate a residence contract and to fix a date by which the resident must vacate the residential premises occupied by the resident in the following circumstances:
(1)the resident breaches the residence contract or the residence rules of a retirement village (s 59(1)(a));
(2)any procedures specified under any applicable code or the residence contract for giving notice of intention to terminate the residence contract and for termination of the residence contract have been complied with by the administering body (s 59(1)(b));
(3)the administering body makes application to the Tribunal (s 59(1));
(4)the Tribunal is satisfied that the breach, in the circumstances of the case, is such as to justify termination of the contract (s 59(2)(a)); or persistent breaches by the resident are, in the circumstances of the case, such as to justify termination of the contract (s 59(2)(b)), or having considered the circumstances of the case it is otherwise appropriate to do so (s 59(2)(c));
(5)the Tribunal must then exercise its discretion as to whether it will order the termination of the contract, and
(6)if the Tribunal does in the exercise of its discretion order the termination of the contract (s 59(2)) it must then fix in the order a date by which the resident is to vacate the premises.
Section 62 permits this Tribunal to terminate a residence contract and to fix a date by which the resident must vacate the residential premises occupied by the resident in the following circumstances:
(1)the administering body makes an application to the Tribunal (s 62(1));
(2)the Tribunal is satisfied that the resident has intentionally or recklessly caused or permitted, or is likely intentionally or recklessly to cause or permit injury to the administering body, or an employee of the administering body or any other resident (s 62(1)(b));
(3)the Tribunal exercises its discretion to terminate the contract (s 62(1)); and
(4)if the Tribunal exercises its discretion to terminate the contract (s 62(2)(a)) it must then fix in the order a date by which the resident is to vacate the premises.
Section 62 does not require an applicant to give notice of an intention to make an application under this section (s 62(3)).

Issue 1 - the terms of the residence contract

The nature and terms of the contract by which the respondent was residing at the retirement village as at the date of the application is the subject of dispute between the parties.
The applicant's position is that by the respondent agreeing to the conditions on his behaviour requested by the applicant on 1 November 2020 the respondent's occupation of Unit 4 was converted from a tenancy at will to a periodic tenancy and that the terms of the periodic tenancy are the same as the terms of the expired second residence contract.
The respondent's position is that the relevant residence contract is a roll-over of the contract which expired in or about June 2020, although the relevant version of the residence rules is the version annexed to a residence contract offered to, but not accepted by, the respondent in about June 2020. The Tribunal notes that the particular rule in question (referred to as rule 10) is identical in each version of the residence rules.
While the respondent might have developed an expectation that the applicant would roll over his short-term contracts, we find that by 16 May 2022 the respondent was aware that the applicant would not offer him a further short-term residence contract.
We note that while the parties do not agree about the nature of the residence contract, they do agree that he does reside there pursuant to a residence contract of some kind which is capable of termination by this Tribunal. They also agree that the residence contract incorporates the residence rules and that the respondent is bound by them. In light of this the Tribunal does not need to make a finding about the exact nature of the contract.

Issue 2 - breach of implied term

The applicant says that it is an implied term of the respondent's periodic tenancy that he would vacate Unit 4 within a reasonable time after being requested to do so, and that the notice issued on 16 May 2022 was such a request. This has the consequence that in failing to vacate the unit within a reasonable time the respondent is in breach of an implied term of the periodic tenancy.

The respondent's argument is that s 17 of the RV Act operates so as to prevent a short-term residence contract from being terminated simply because the term of the contract has expired.
The RV Act is unusual in that although it specifically contemplates the existence of short-term contracts, there is no provision governing how they can be terminated (except for by order of the Tribunal under s 17 of the RV Act).
Persons who reside at retirement villages pursuant to short term contracts have not paid the premium that long term residents have paid and it would be a surprising outcome if such persons could not be required to leave the retirement village at the end of the contract term, or if such contracts could not be terminated by either party.
However, there are provisions in the RV Act which militate against the conclusion that this can occur - for example s 17(1)(b) only refers to the termination of the resident contract by the resident in accordance with the residence contract.
The Tribunal notes that the RV Act is consumer protection legislation and there is authority to that effect: Retirement Care per Pritchard J at [168].
There is also authority from the Supreme Court of NSW to the effect that with respect to the equivalent legislation in that State to the RV Act, the legislature intended that termination of a resident's contracts is only to be in the circumstances set out in the RV Act and not by any other mechanism: Elliot Tuthill Nominees Pty Ltd v Boele[2010] NSWSC 103 at [14] and [15].
The applicant seeks to rely on an implied term allowing it to terminate a fixed-term contract. Whether an implied term is one which is, in the circumstances, so obvious it goes without saying in the context of this legislation, is a difficult question. However, ultimately, given the conclusions the Tribunal has reached in relation to the other grounds for termination, we have not found it necessary to reach a final view on this issue.

Issue 3 - breach of residence contract and residence rules

Rule 10 of the residence rules provides that:
Radios, television sets, computers, pianos, organs and other musical instruments or tools must not be operated in such a way that they annoy other Residents. Units are not to be used for any purpose other than a private residence. All residents are entitled to privacy and quiet enjoyment of their unit and no Resident shall cause any nuisance or objectionable behaviour towards any other Resident in the Village.
As the respondent correctly points out, r 10 only prohibits objectionable behaviour by one resident to another resident in the village.
Rule 10 is perhaps also unfortunately drafted. On a literal reading it suggests that the test of whether noise is annoying is purely subjective - so that if one resident is annoyed by noise that is enough. However, the Tribunal prefers the applicant's construction of r 10 and finds that it prohibits the making of noise which is objectively unreasonable having regard to the context of living in a retirement village and does not prohibit the making of reasonable noise which annoys only one resident but no others.
Ultimately though, the construction of that part of r 10 is not determinative to the question the Tribunal has to decide, which is whether the respondent has caused any nuisance or objectionable behaviour to any other resident.
In this case, for the reasons given below, the Tribunal finds that the respondent has caused objectionable behaviour to other residents, namely Mr Ducic and Ms Pomaybo, on 31 March 2023, and this is regardless of whether at the time the respondent was in fact annoyed by the noise of these residents.
The background to the incident on 31 March 2023 is not in dispute. Unit 3, which is occupied by Mr Pomaybo and Ms Ducic, is not any great distance from Unit 4. The respondent alleges and Mr Pomaybo agrees that he engaged in leatherwork in his unit, and that this involved using a small hammer to work pieces of leather.
Mr Pomaybo and Ms Ducic maintain that the use of the hammer by Mr Pomaybo did not cause an unreasonable amount of noise, although they accepted that it caused some noise. In their view the noise would have been barely detectable outside of their unit.
The respondent maintains that the hammering noise was detectable from within the carport to his unit. In his view he had complained without success to Ms Ferguson, the retirement village manager, about the noise, but his complaints were not acted on and the noise continued. The respondent points to r 10 which he says clearly states that 'tools must not be operated in such a way that they annoy other Residents'. He says he is a resident, and the hammering noise did annoy him.
Ms Ducic in her evidence-in-chief said the first incident she was involved in with the respondent was when he came to Unit 3 on 29 August 2022 and spoke to her through the unit security screen to complain about the noise Mr Pomaybo's leatherworking hobby was making. She said that his tone was demanding, that he started to raise his voice and that she felt intimidated. Mr Pomaybo then spoke to him, and the respondent demanded he stop the noise. Mr Pomaybo refused to do this, and the respondent walked away. Later that day Ms Ferguson came to Unit 3 and said that she had received a complaint about 'banging' noises. Ms Ferguson asked Mr Pomaybo to replicate the noises and after he did so she advised both Ms Ducic and Mr Pomaybo that the noise was reasonable and that he could continue 'as long as it's not done every day for long periods of time'.
Ms Ducic stated that the second incident at Unit 3 took place a few days later when she saw that Mr Pomaybo was talking to the respondent through the security screen door. She heard him say to Mr Pomaybo that he 'must stop the banging'. Mr Pomaybo refused and shut the solid door. The respondent then started banging on the door loudly and said, 'how dare you shut the door on me'. He was angry and she thought he might become violent. Mr Pomaybo said that he would call the police if the respondent did not leave, and he then left.
The third incident at Unit 3 took place on 31 March 2023 at about 9.20 am. At that time Ms Ducic stated both she and Mr Pomaybo were at home with Mr Pomaybo engaged in leatherwork. She then saw Mr Pomaybo speaking to the respondent through their security screen door. She said that the respondent was yelling and so she began to make a video recording on her phone. After a short time, the respondent began to walk away and she stopped the recording. The respondent then turned around and walked back toward the unit and so she began recording again. She said at that time she thought the respondent was attempting to gain access to the unit and she felt scared that he might enter and hurt them. These video recordings were played to the Tribunal.
Ms Ducic said the respondent was 'acting aggressively by smashing his hand on the door and pulling on the door handle with force'. She later applied for and obtained an interim violence restraining order against the respondent which was not finalised and was still in force on 14 September 2023. She also stated that there has been no incident with the respondent since 31 March 2023.
Mr Pomaybo in his evidence-in-chief confirmed that he does engage in leather work as a hobby. He sometimes works for an hour or two each day on a project for a few days and then takes a break of about a week before he starts a new project. He uses a rubber hammer, punches and small cordless angle grinder on his projects. He otherwise gave evidence that was consistent with Ms Ducic's evidence about his interactions with the respondent. He said that as a result of the first two interactions he felt scared and uncomfortable and that he no longer sits outside of his unit as he used to.
During the third incident Mr Pomaybo said he also felt concerned that the respondent might enter the unit and become violent toward him or Ms Ducic. As a result of the third incident, he too applied for and was granted an interim violence restraining order which was not finalised and was still in force on 14 September 2023. Mr Pomaybo stated there has been no incident with the respondent since 31 March 2023.
The respondent in his evidence-in-chief said that he had heard 'frequent and sustained hammering noise' coming from Mr Pomaybo's unit for some months, which he found stressful. He said that on the first incident on 29 August 2022 he greeted Ms Ducic courteously and calmly. He said he spoke to Mr Pomaybo who was contemptuous and dismissive of him. He denied raising his voice. He then went to Ms Ferguson's office to complain about the noise. Some days later he heard hammering again and stopped at Unit 3 to say that it should stop. He accepted that he was annoyed but denied that he yelled or screamed. He stated he did not recall Mr Pomaybo shutting and then opening his door and he did not bang on the door.
With respect to the incident on 1 September 2022, the respondent said in his evidence that he spoke to Mr Pomaybo and Ms Ducic due to the hammering noise that was coming from their unit. He said most of the allegations made about him on that day are 'complete fabrications'. While he said he was annoyed, he said he did not yell or scream, shout, bang on a door or spit.
With respect to the incident on 31 March 2023, as set out above, the respondent said he could hear the noise 'from at least 40 metres away in my carport. It is loud and repetitive'. He agreed he went to the unit and spoke to Ms Ducic and Mr Pomaybo but denied smashing his hand against the screen door. He said the noise has caused a serious detriment to his health and well-being.
The following exchange of questions and answers took place during the cross examination of the respondent about the incident on 31 March 2023:[7]
And how would you characterise those discussions with Mr Pomaybo as shown on the video? Would you say that you spoke to him harshly?---Yes, I would say that I - forcefully, harshly, yes.
Would you say that you were aggressive towards him?---
Yes.
Do you accept that on that occasion you behaved aggressively?---
On that occasion, I do accept that I was - yes.
And what was aggressive about your behaviour on that occasion?---Because there was a threat of violence.[8]
[7] ts 67, 14 September 2023.
[8] ts 65 - 66, 14 September 2023.
The respondent was then asked specifically about whether he might have become violent at that time if he gained entry to the unit.[9]
So the threat of violence was your - - -?---Yes.
- - - only resort?---Yes, it would have been, but I wasn't able to get in.
Because the door was locked?---Yes.
Might violence have ensued had you been able to get in?---Yes.
Might it ensue in the future if the noise continues?--- It might just happen. The possibility is distinctly that.
[9] ts 67, 14 September 2023.
After considering all of the evidence, the Tribunal finds that the respondent's behaviour on 31 March 2023 was 'objectionable' behaviour and therefore finds that the conduct is a breach of r 10.
The Tribunal also finds that the applicant gave notice to the respondent of its intention to terminate this residence contract by its notice dated 11 August 2022.
The Tribunal also finds that the respondent's conduct on 31 March 2023 was such a serious breach of rule 10 that it was in all the circumstances, sufficient to give rise to a right of termination under s 59(2)(a) of the RV Act.
This is because on the respondent's own evidence he said he intended to enter the unit but could not do so as the security screen was locked. On the basis of the evidence by the respondent which we have set out above the Tribunal finds that there was a real possibility that the respondent might have assaulted one of the residents, had he been able to enter the unit.
It is clear from the terms of s 59(2) of the RV Act that having made the finding above, it remains within the discretion of the Tribunal whether or not to make an order terminating the residence contract. That is clear by the use of the word 'may'. The question of what factors should be considered by the Tribunal when exercising its discretion in this regard will be discussed by us later in these reasons.

Issue 4 - termination under s 62(1)(b) RV Act

The applicant's position in relation to this ground of termination is that the respondent:
(a)has already caused and/or is likely to recklessly cause psychological injury to Ms Ferguson; and
(b)is likely to intentionally cause physical injury to Ms Ferguson, Mr Pomaybo, Ms Ducic and/or other residents if they do not refrain from engaging in behaviours which antagonise him.
The Tribunal does not accept the submission of the respondent that the Tribunal is estopped from considering incidents earlier than 2 November 2021 given that his continued residence in the unit was conditional on future good behaviour. However, in the Tribunal's view they are of limited relevance given their historical nature. They could not be in the Tribunal's view (and neither has the applicant sought to characterise them as) be regarded as 'persistent' breaches of the rules such that would justify termination.

Psychological Injury

The Tribunal prefers the approach in Crook v Consumer, Trader & Tenancy Tribunal of NSW & Anor [2003] NSWCA 370 and Tarragal Glen Retirement Village II Pty Ltd and Errol Investments Pty Ltd v De Carli [2021] NSWCATCD 58 and finds that non-physical 'injury' for the purpose of s 62(1)(b) of the RV Act does not mean 'emotional conditions such as distress, alarm, fear, anxiety, annoyance or despondency without any resulting recognisable psychiatric illness'[10] but is confined to 'recognisable psychiatric illness or condition. It is not to be assessed according to issues, which are subjective to the victim'.
[10] At [61], referring to Moore v Scenic Tours Pty Ltd [2020] HCA 17 (2020) 377 CLR 209 at [55] - [57].
In our view this is consistent with the intention of the RV Act which includes the need to provide security of tenure for elderly people who have paid a premium for a life term residence contract within a retirement village, and that that this security of tenure should not be disturbed except for conduct which causes non-physical injury which is capable of being proven objectively.
We also agree with the respondent that there is no evidence from a competent medical practitioner that Ms Ferguson has suffered a recognisable psychiatric illness, although the Tribunal is satisfied that she has been shaken and was emotionally upset by the respondent's behaviour. The Tribunal is therefore satisfied and so finds that Ms Ferguson has not suffered an injury within the meaning of the RV Act and is not likely to suffer a psychological injury in the future.

Physical injury

Ms Ferguson gave the following evidence at the hearing:
(a)On 29 August 2022 the respondent attended on her at her office at the retirement village to complain about hammering noises coming from Unit 3 which was occupied by Mr Pomaybo and Ms Ducic. She then visited Unit 3, spoke to Mr Pomaybo and Ms Ducic and then listened outside the unit while Mr Pomaybo replicated the hammering noise. She then advised Mr Pomaybo that the noise was acceptable provided it was not for long periods of time and at a reasonable time of the day.
(b)On 19 September 2022 the respondent attended her office at the retirement village to speak about the hammering noise caused by Mr Pomaybo. During that conversation the respondent said words to the effect that the retirement village is condoning noise that is detrimental to his health and well-being, that Ms Ferguson was deliberately manipulating him into a violent confrontation, that the noise made by Unit 3 was 'pre-planned and provocative' and was planned 'to cause a violent act'. He also said that she was 'malicious' and that he was not going to tolerate this situation. When saying these words, he was red in the face and was 'spitting his words' at her.
(c)On 31 March 2023 the respondent entered her office while she was sitting at her desk. He yelled at her that she was to 'stop the banging at Unit 3'. He repeated this demand several times and when doing so he was red in the face, was leaning over her while she was seated and was pointing to her as he spoke. She felt scared that the respondent would become physically violent toward her. She asked the respondent three times to leave before he actually left. As a result of this incident and her later conversation with Ms Ducic and Mr Pomaybo she called police who attended. She then applied for an interim violence restraining order against the respondent which was granted and remains in place.
Ms Ferguson characterised the respondent's behaviour as generally 'erratic, angry and aggressive'. She fears that he will become violent towards her. She locks her office door because she does not want the respondent to enter and to be alone with her. She has never experienced any similar behaviour from another resident of the retirement village. She was provided by her employer with a personal alarm and an office alarm.
The Tribunal notes here that counsel for the respondent crossexamined Ms Ferguson and other witnesses on the issue whether the respondent was deliberately spitting at her.[11] As a result of such cross-examination the Tribunal is satisfied that at no time did the respondent ever deliberately spit at Ms Ferguson or any other person.
[11] ts 39, 13 September 2023.
The respondent in his evidence said that he accepts that his adherence to rules and his expectations that others do the same can sometimes be inconvenient for those ensuring compliance with the rules. Some of his suggestions about how management can be improved at the retirement village have been adopted. Ms Ferguson's attitude to him in his view is due to personal hostility. He said Ms Ferguson at best simply exaggerates what he says and at worst lies about him in order to portray him in the worst possible light.
The respondent was cross-examined at length at the hearing. While the respondent initially maintained in cross-examination the accounts he gave in his evidence-in-chief, he did eventually change his evidence. By way of significant example of such change, the respondent was cross- examined about the impression that he has a hostile demeanour, when that is not his intent.
Initially the respondent said that he approached people in a cordial and polite way as a matter of course, and that any account given about him that he was hostile likely arose from a 'deeply entrenched … hatred or enmity' towards him[12]. Before he lived at the retirement village, he never had anyone say to him that he is hostile. The respondent also initially confirmed that he has never been anything other than courteous and respectful in any of his dealings with staff or other residents at the retirement village[13]. He said that anyone who said anything different is either exaggerating or lying.[14]
[12] ts 30, 14 September 2023.
[13] ts 31, 14 September 2023.
[14] ts 3, 14 September 2023.
He then went on to say that Ms Ferguson had 'driven him to the point of exasperation'.[15] He then responded to the question about what happened when he had reached his limit, he said that he would exhibit annoyance. His annoyance would show through his tone of voice and the words he used. However, he was not a violent person, and it was 'ludicrous' to suggest that he intended violence.[16]
[15] ts 3, 14 September 2023.
[16] ts 35, 14 September 2023.
The respondent was then asked if was concerned that staff or other residents at the retirement village were trying to deliberately provoke him. The respondent said that a small number 'have generated, between them, a very solid enmity or deep-rooted or deep-seated enmity towards myself, for their own reasons'.
The respondent expanded on this to say:
… it is a certainty, in my eyes, after such a protracted period of time has transpired, that there has been a long pursuit amongst a certain group of people within the Elanora community, both staff, certainly, and residents, of victimisation of myself with the objective or corollary that with enough false allegations over a long period of time will build up - between management and residents will - 'We will build up' - this is they talking - 'such a solid case against Mr Kinnane to management', top management, that it will appear to such an independent arbitration body that it would be hard to arrive at any other conclusion than what they are alleging must be correct, out of sheer numbers.[17]
[17] ts 36, 14 September 2023.

The respondent was then questioned as to whether he believed that Mr Pomaybo was brought into the retirement village in order to provoke him with the hammering noise. The respondent said that this was a 'possibility - a feasible possibility. But on the other hand, one that I can't prove, obviously'.
The respondent also said that it was possible that Ms Ferguson did not in fact know that Mr Pomaybo would make a hammering noise in his unit, but that once she learnt this, she resolved to exploit this in order to cause a difficulty for the respondent.
The Tribunal considers that Ms Ducic and Mr Pomaybo gave consistent and reliable evidence which was corroborated by the video evidence played to the Tribunal. The Tribunal also accepts that Ms Ferguson also gave consistent and reliable evidence, although her feelings of antipathy toward the respondent were apparent.
The Tribunal, however, considers that the respondent did not give wholly consistent or reliable evidence.
The Tribunal finds that the respondent in his evidence-in-chief and in the early part of his cross-examination attempted to convey the impression that he was a man who spoke firmly from time to time but was always courteous and polite. However, the Tribunal finds that in the second half of this cross examination the respondent changed his evidence by revealing that he believes that he may be the victim of a conspiracy within the village to provoke him to commit acts of violence, that he is sometimes pushed beyond endurance and then may raise his voice, and in some circumstance he can become close to committing an act of violence.
The Tribunal is satisfied and so finds for these reasons that the incidents relating to the leatherwork took place as described by Ms Ferguson, Ms Ducic and Mr Pomaybo and prefers their evidence to that of the respondent where there is a conflict.
In this proceeding it is not disputed that the respondent has not caused physical injury to anyone. However, the issue remains of whether he is likely to do so.
Based on the respondent's own evidence under cross-examination with respect to his intentions on 31 March 2023 and based on his belief (which was unsupported by any evidence) that others including Mr Pomaybo and Ms Ducic are attempting to provoke him to commit an act of violence, the Tribunal finds that it is likely that the respondent will cause physical injury to Mr Pomaybo and Ms Ducic, who are both elderly and vulnerable residents.
The Tribunal notes that the applicant also relies on s 59(2)(c) of the RV Act as an alternate ground of termination, but given the conclusions reached by the Tribunal above, we do not consider it necessary to consider this ground.

Exercise of the discretion - s 59 and s 62

Under both s 59 and s 62 of the RV Act the Tribunal retains the overriding discretion as to whether to make an order terminating a residence contract.
This discretion is not unfettered but rather must be exercised having regard to the scope and purpose of the RV Act and includes, in the Tribunal's views the following factors:
(a)The impact of termination on the respondent including a consideration of his vulnerability as outlined in the report of Dr Gildenhuys.
(b)The circumstances of the respondent's residence contract including any expectation of security it affords the respondent.
(c)The nature and significance of the breach in the context of the contract, including whether it is a serious breach.
(d)The likelihood of future breaches of the rules or s 62(1) of the RV Act.
(e)The impact of the respondent's behaviour on the applicant's staff and other residents.
With respect to the respondent's personal circumstances, the Tribunal accepts that the consequences of termination are potentially devastating for the applicant. His lawyer says that the respondent will be at risk of homelessness. He is dependent on social security payments of $1,178 each fortnight plus a Danish pension of $85 a fortnight.[18] He appears to have no significant savings or assets. He is obviously elderly. He says he has tried to find alternative accommodation but has been unable to find any suitable accommodation that he could afford. While the Tribunal is aware as a matter of common knowledge that the private rental market is much tighter than in the past, no evidence has been provided by the respondent that confirms the extent of the inquiries he has made into private rentals.
[18] Matter Book, page 639.
The applicant is also aware of the potential consequences to the respondent and points to the efforts it has made to persuade the respondent to modify his behaviour, the conditional withdrawal of its notice dated 5 October 2020 due to his surgery, its lapsed offer to the respondent to pay him $20,000 to vacate the unit, and to the time the applicant has given to the respondent to prepare himself for this situation and transfer to new accommodation.
The Tribunal is also mindful that if it does terminate the respondent's residence contract that it is able to somewhat ameliorate these consequences, as it has the power to determine the date on which the respondent is to vacate the unit and is able to order the repayment of any deposit that he might have paid.
With respect to the circumstances of the residence contract, the Tribunal finds the respondent commenced to occupy the unit at the retirement village on or about 26 March 2018 pursuant to a short-term residence contract for a term of 12 months. The term expired on 25 March 2019. The second short term residence contract was entered into on or about 11 June 2019 then expired on 10 June 2020. The Tribunal also finds the respondent did not pay the significant premium that would be expected for a licence to occupy the unit for life. It also finds that he therefore never had an expectation that he had security of tenure for life, although he may have had some expectation that his second short term lease may roll over, but we find that this expectation ended by no later than 16 May 2022.
This is because the respondent has clearly understood that his contract was for a fixed term and that the applicant had clearly communicated to him that it wanted him to vacate the unit. The Tribunal finds that despite this communication, the respondent since 15 July 2022 has refused to leave the unit.
In terms of the likelihood of intentionally causing injury, the Tribunal finds that the possibility is real and is continuing due to the respondent's lack of insight into his behaviour. The Tribunal does note that there has been no further behaviour since the interim VRO was imposed shortly after 31 March 2023, however, whether this is because of, or in spite of, the VRO is impossible to say.
The respondent gave evidence he has been excluded as a patient from three medical practices. The respondent also denies that he has a mental health condition, and so accordingly will not accept treatment for a mental health condition. He denies that he has a hostile demeanour.
The respondent's belief that persons at the retirement village have conspired to provoke him to violence indicates a lack of insight into his own behaviour which increases the prospect that he might repeat his aggressive and hostile behaviour, which the Tribunal finds makes it a real possibility that he may cause injury to other residents in the retirement village.
The respondent submits that the Tribunal is to take into account the fact that there is no residence contract in writing as is required by the RV Act. However, in the Tribunal's view there is no written contract not because of fault on behalf of the applicant, but because the respondent has refused to sign the several written contracts that were offered to him. We note that the applicant has, since the respondent refused to enter into these further contracts, decided that it would withdraw its offer of a written contract and that it has stated that it will not offer him another written contract.
The Tribunal also finds, contrary to the respondent's submission, that the applicant has attempted to engage in dispute resolution with the applicant prior to commencing proceedings. We find that the meeting on 10 May 2022 was a dispute resolution process.
We also note that the applicant has participated in three mediations during the course of this proceedings and in an open letter at around the time of the third mediation made an offer to pay the respondent $20,000 if he agreed to vacate the unit. We therefore find that the applicant has, in its attempts to require the respondent to vacate his unit, acted reasonably.
The Tribunal recognises the respondent has paid his rent on time and accepts the evidence clearly shows that he keeps his unit in very good condition. However, whilst admirable, these are matters that are expected of every resident and if he failed to do them, would only provide additional grounds for termination of his residence contract.
The Tribunal, after weighing all of these relevant factors, has determined that it will exercise its discretion to make an order both pursuant to s 59(2) and s 62(1) terminating the residence contract.

Date by which the respondent must vacate the unit

As the Tribunal has determined that it will exercise its discretion pursuant to s 59(2)(a) and s 62(1)(b) of the RV Act to make an order terminating the respondent's residence contract, the Tribunal must pursuant to s 59(3) and s 62(2)(a) of the RV Act fix a date by which the respondent must vacate the residential premises occupied by him.
After hearing from the parties on this issue the Tribunal decided that with Christmas approaching that a longer than usual period of time should be given to the respondent to vacate the residential premises. With the consent of the applicant, the Tribunal determined that it is appropriate to require the respondent to vacate the residential premises by no later than 4.00 pm on 15 March 2024.

Orders

The Tribunal orders:
1.The application is allowed.
2.The residence contract between the applicant and the respondent is terminated.
3.The respondent must vacate Unit 4 of the Bethanie Elanora Retirement Village located at 37 Hastie Street in Bunbury by 4.00 pm 15 March 2024.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS N EAGLING, MEMBER
29 JULY 2024