TriCare Stafford Heights T/as TriCare Stafford Lakes Retirement Village v Egan
[2022] QCAT 389
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
TriCare Stafford Heights T/as TriCare Stafford Lakes Retirement Village v Egan & Anor [2022] QCAT 389
PARTIES:
TriCare stafford heights t/as TriCare stafford lakes retirement village (applicant)
v
barbara egan
john egan(respondents)
APPLICATION NO/S:
OCL018-22
MATTER TYPE:
Other civil dispute matters
DELIVERED ON:
21 November 2022
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member Deane
ORDERS:
Barbara Egan and John Egan must remove all unapproved pets from TriCare Stafford Lakes Retirement Village by 4.00pm 9 December 2022.
CATCHWORDS:
REAL PROPERTY – RETIREMENT VILLAGES – where residents in breach of residence contract
Retirement Villages Act 1999(Qld), s 10, s 21, s 22, s 154, s167, s 191, s 209, s 210
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
Mr and Mrs Egan reside at a retirement village operated by TriCare Stafford Heights (TriCare). TriCare commenced proceedings seeking an order that Mr and Mrs Egan immediately remove all unapproved pets from the premises (the Application).[1] TriCare contends that pets (a cat and a dog) in Mr and Mrs Egan’s residence have not been approved by the village operator in accordance with their lease and the village bylaws and that the cat is permitted by Mr and Mrs Egan to wander outside their unit unattended and unleashed in contravention of the village bylaws.
[1]Filed 28 March 2022.
Mr and Mrs Egan failed to comply with directions to file a response to the Application.[2] TriCare is entitled to a final decision and Mr and Mrs Egan are not entitled to dispute the matters set out in the Application.[3] TriCare was directed to file and serve statements of evidence in support of its contentions and the Application was directed to be determined on the papers not before 15 October 2022. TriCare filed a statement of evidence of Richard Andrews, retirement villages manager for TriCare.[4] I now proceed to determine the Application.
[2]Direction 2 made 24 May 2022 and Direction 1 made 22 July 2022.
[3]Direction 1 made 13 September 2022.
[4]Dated 13 October 2022.
Jurisdiction
I am satisfied that the Tribunal has jurisdiction to hear this retirement village issue.
TriCare lodged a Notice for referral to mediation on 9 February 2022, a mediation was scheduled for 23 March 2022, Mr and Mrs Egan failed to attend and the dispute was therefore unable to be resolved. TriCare, as it was entitled to do having complied with the pre-proceeding mediation process, then filed the Application.[5]
[5]Retirement Villages Act 1999(Qld), s 167 (the Act).
The Tribunal’s function is to hear retirement village issues that are within the Tribunal’s jurisdiction and it is appointed hear.[6] The Tribunal has jurisdiction to hear retirement village issues other than a retirement village dispute about an issue between the parties that is the subject of arbitration, has been the subject of an award in an arbitration proceeding or is before or has been decided by a court or if the amount, value or damages in dispute is more than the monetary limit of the District Court.[7] I am satisfied that the dispute does not fall within any of these exceptions. A retirement village issue is defined as a retirement village dispute or an application for an order under sections 169 to 171 or 173.[8] A retirement village dispute is defined as 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 this Act.[9]
[6]Ibid, s 209.
[7]Ibid, s 210.
[8]Ibid, s 22.
[9]Ibid, s 21.
Are Mr and Mrs Egan in breach of the residence contract or the Act?
I find that Mr and Mrs Egan are in breach of the residence contract.
A residence contract is one or more written contracts about residence in a retirement village entered into between a person and the scheme operator.[10]
[10]Ibid, s 10.
Mr Andrews has attached to his statement of evidence an extract of the lease between TriCare and Mr and Mrs Egan (Lease). Clause 16 (i) of the Lease provides that the Resident at all times must not keep or permit animals, birds or other pets in the Apartment or the Retirement Village without the prior written consent of the Manager, which consent may be revoked at any time should the Manager, in its discretion, be satisfied that the keeping of such pet creates annoyance, disturbance or nuisance to the other residents or their invitees.
Mr Andrews has attached to his statement of evidence an extract of the village rules. They provide:
(a)no pets are allowed to be kept in a Resident’s Unit or brought onto common areas at any time unless the Resident has been granted written consent by the Manager to keep a pet.[11]
(b)where a Resident is permitted to keep a dog or a cat, the Resident must adhere to Brisbane City Council regulations in all regards; it must be de-sexed; it must be retained within the confines of the Resident’s Unit or alternatively it must be on a leash at all times when on Common Areas.[12]
[11]Clause 11.2.
[12]Clause 11.3.
Mr Andrews has attached to his statement of evidence an extract of the Brisbane City Council’s Animals Local Law 2017 which provides at clause 27 that a keeper of an animal must maintain an enclosure and must ensure that the animal does not wander at large.
I find that Mr and Mrs Egan are in breach of the Lease and the village rules. I accept Mr Andrews’ evidence that Mr and Mrs Egan:
(a)acknowledged receiving a copy of various documents including the Lease and the village rules on 19 June 2020.
(b)entered into the Lease commencing 21 July 2020.
(c)moved into the retirement village on 3 September 2020.
(d)have not applied for written consent from the manager for the cat nor the dog in their premises.
(e)allow the cat to roam unattended and unleashed outside of their unit in contravention of the village rules and the Brisbane City Council’s Animals Local Law 2017.
(f)have failed to respond to correspondence sent to them requesting these breaches to be remedied.
(g)failed to respond to a request for preliminary negotiation in accordance with section 154 of the Retirement Villages Act 1999(Qld) (the Act).
What order should be made?
The Tribunal may make the orders the tribunal considers to be just to resolve a retirement village issue[13] including an order for a party to that issue to do, or not to do, anything.[14]
[13]The Act, s 191(1).
[14]Ibid, s 191(2)(a).
In the circumstances, I am satisfied that to resolve the retirement village issue it is just to order that Mr and Mrs Egan remove all unapproved pets from the premises. It is appropriate to provide a short period of time for them to comply with this order.
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