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Keyton WA for Qld Pty Ltd v Sonerson[2024] QCAT 324

Keyton WA for Qld Pty Ltd v Sonerson[2024] QCAT 324

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Keyton WA for Qld Pty Ltd v Sonerson [2024] QCAT 324

PARTIES:

KEYTON WA and QLD PTY LTD as trustee for keyton wa and qld trust

(applicant)

v

ALLAN SONERSON

(respondent)

APPLICATION NO/S:

OCL074-22

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

5 August 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member King-Scott

ORDERS:

  1. I order that Mr Sonerson:
    1. not engage in behaviour that brings the Village into disrepute and/or detracts from or interferes with the rights, peace and enjoyment and privacy of other residents of the Village including behaviour of an abusive, aggressive, intimidatory, threatening, bullying, demeaning and/or harassing kind.
    2. not engage in conduct that materially impedes Village staff and/or agents from performing their duties;
    3. not engage in abusive, aggressive, intimidatory, threatening, bullying, demeaning and/or harassing behaviour towards Village staff, contractors or agents, residents, their visitors or guests. 
  2. I make the following declarations:
    1. That Mr Sonerson’s conduct as described in these reasons has brought the Village into disrepute and amounts to a material breach of his Contract with the Applicant;
    2. That Mr Sonerson’s abuse, disrespect, harassment and intimidation of the Applicant’s staff and residents as described in these reasons amounts to a breach of s 136 of the Retirement Villages Act 1999 (Qld) and clause 12 of the Lease (which breach is a material breach in accordance with Clause 20.4 of the Lease).

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where applicant was an operator of a retirement village – where respondent resided in a retirement village – where the respondent engaged in abusive conduct towards other residents and staff – whether appropriate that matter be heard on the papers – declaratory relief

Retirement Villages Act 1999 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

ACJ v AD [2023] QDC 176

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564

Randall v Body Corporate for Runaway Cove Bayside [2011] QCATA 10

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

  1. [1]
    The Applicant, which is the operator of Hibiscus Retirement Resort, Nambour, has applied to have one of its residents, Alan Sonerson, desist in his abusive behaviour towards employees, contractors, residents, visitors or guests, or any other person on the village premises. The operator also seeks a declaration that the Mr Sonerson is in breach of the Retirement Villages Act 1999 (Qld) and his Lease.

History of proceeding

  1. [2]
    This matter was listed for an on the papers hearing on 13 October 2023.
  2. [3]
    The Application is supported by an undated affidavit of Debra Ann Winter filed in the Tribunal on 22 November 2022. Ms Winter deposes in her affidavit to a number of matters that are no longer relevant or correct. I do not direct any personal criticism towards Ms Winter in making the following observations.
  3. [4]
    The name of the original Applicant is incorrect as it changed its name from ‘Lendlease RL WA and QLD Pty Ltd as trustee for Lendlease RL WA and QLD Trust’ (‘Lendlease’) to ‘Keyton WA and Qld Pty Ltd as trustee for Keyton WA and QLD Trust’ (‘Keyton’) on 6 June 2023.
  4. [5]
    On 29 April 2016, the Respondent, Alan Sonerson, entered into a lease[1] of residential unit 32 in the Hibiscus Retirement Resort Nambour with Lendlease RL (Nambour) Pty Ltd. That company was deregistered on 23 October 2018 according to ASIC records.
  5. [6]
    The original Applicant in these proceedings was not the operator of the Hibiscus Retirement Resort Nambour at the time of the application. Keyton and not Lendlease was recorded in the Australian Securities and Investment Commission (‘ASIC’) records as the holder of the business name Hibiscus Retirement Resort Nambour (‘the Village’).
  6. [7]
    Directions were made on 13 December 2023 to change the name of the Applicant in these proceedings to accord with that name change.
  7. [8]
    On 21 March 2024 further Directions were issued to correct the record as to the name of the operator of the village, the name of Ms Winter’s employer and the name of the respondent’s lessor.
  8. [9]
    Keyton has now provided a statement dated 5 April 2024 signed by Wai See Chung, Head of Legal, Keyton correcting the record as follows:
    1. The owner and operator of the Village is Keyton;
    2. Deborah Winter was employed by Keyton Management Services Pty Ltd ACN 618 487 504 as trustee for the Keyton Management Services Trust. Ms Winter was the Regional Operations Manager, Queensland, for the business operating the Village at the time the application was lodged, but has since ceased acting in this role;
    3. The lessor under Alan Sonerson’s lease of Unit 32 at the Village is now Keyton.

The Application

  1. [10]
    The operator of the village seeks the following orders against Mr Sonerson:
    1. An order pursuant to s 191(2) of the Retirement Villages Act 1999 (Qld) that Mr Sonerson not engage in behaviour towards employees or contractors of Operator, other residents or their visitors or guests, or any other person on the village premises, of any kind which is:
      1. abusive;
      2. aggressive;
      3. intimidating;
      4. threatening;
      5. bullying;
      6. demeaning; or
      7. harassing, including, but not limited to:
        1. using offensive language towards any other person;
        2. describing any other person using derogatory language including name calling even direct medications with that person or otherwise;
        3. retaining footage captured by the security camera installed at the respondent unit for any purpose other than deterring or recording a genuine security threat;
        4. publishing or distributing any footage will photograph of any person without that person's permission;
        5. monitoring other residents’ or their visitors’ or guests’ movement or activities;
        6. making threats towards any other person;
        7. sending harassing emails or letters to any other person;
    2. Further, an order pursuant to s 60 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), declaring that the conduct referred to is in breach of s 136 of the Retirement Villages Act 1999 (Qld) and clause 12 of the Lease (which breach is a material breach in accordance with Clause 20.4 of the Lease)

Jurisdiction

  1. [11]
    Part 9 of the Retirement Villages Act 1999 (Qld) (‘the Act’) deals with Dispute Resolution. Section 154 provides for a preliminary negotiation between the parties prior to referring the dispute to mediation. The section requires that one party give to the other a written notice stating the matters in dispute nominating the day, which may be no earlier than 14 days after the notice is given.[2]
  2. [12]
    In a letter dated 23 February 2022[3] an offer of a meeting was made nominating a meeting date of 14 March 2022 at 2:00 pm. Mr Sonerson, by email dated 25 February 2022, declined the offer of a meeting at any time. On 4 March 2022[4] a further request was made to meet with Mr Sonerson on the nominated date. It is apparent from Mr Sonerson’s email of 21 March 2022[5] that he was anxious to proceed to a QCAT hearing.
  3. [13]
    By letter dated 28 March 2022[6] the Applicant proposed a mediation and nominated three potential mediators. They asked for a response by 1 April 2022. It appears that Mr Sonerson did not respond, at least not in a meaningful way.
  4. [14]
    By letter dated 6 May 2022[7] the Applicant advised Mr Sonerson that they intended to file a referral to Mediation with QCAT for the mediation of the dispute.
  5. [15]
    A dispute notice for referral to mediation was filed on 16 June 2022.
  6. [16]
    A retirement village dispute is defined in s 21 of the Act 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 and includes a dispute about compliance by a scheme operator or a resident with this Act, whether or not a particular failure to comply is an offence against this Act.
  7. [17]
    Access to this Tribunal is provided for under s 167 of the Act. A condition precedent is that the parties to the dispute cannot reach a mediation agreement to the dispute or a party to the dispute does not attend the mediation conference for the dispute.
  8. [18]
    Pursuant to section 158 of the Act the registrar must, within 14 days after receiving the dispute notice, appoint a mediator to mediate the retirement village dispute giving notice (at least 7 days before the conference) of the mediator who is to mediate the dispute and the time date and place of the conference. The requirement is mandatory.
  9. [19]
    An application for a Tribunal hearing was filed on 22 November 2022. The Registrar arranged a mediation which was held on 29 Aug 2022. The Mediator reported no resolution of any of the issues in dispute.
  10. [20]
    Jurisdiction of the Tribunal is dependent upon compliance with s 167 of the Act. I am satisfied that I have jurisdiction to hear this matter.

Legislation and Residence Contract

  1. [21]
    The following provisions of the Act are relevant:

21 What is a retirement village dispute

  1. 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 this Act.
  1. For subsection (1), a retirement village dispute includes a dispute about compliance by a scheme operator or a resident with this Act, whether or not a particular failure to comply is an offence against this Act.

135 Scheme operator to respect rights of residents

  1. A scheme operator of a retirement village must respect the rights of residents of the retirement village.
  1. Without limiting subsection (1), the scheme operator—
  1. must not unreasonably interfere with, or allow interference with, the reasonable peace, comfort or privacy of a resident; and

Example—

It may be reasonable for a scheme operator to interfere with a resident’s access to a communal facility to make repairs to the facility.

  1. must take reasonable steps to ensure a resident or a resident’s guest does not interfere with the reasonable peace, comfort or privacy of another resident; and
  1. must use the scheme operator’s best endeavours to ensure each resident lives in an environment free from harassment and intimidation; and
  1. must not restrict the right of a resident to autonomy over the resident’s personal, financial or other affairs or possessions; and
  1. must not restrict a resident from exercising self-reliance in matters relating to the resident’s personal, domestic or financial affairs; and
  1. must, within 21 days after receiving relevant correspondence from a resident or former resident, or the representative of a resident or former resident, give the resident, former resident or representative a complete response to the relevant correspondence.
  1. Nothing in this section prevents the scheme operator, or another person, from entering the resident’s accommodation unit—
  1. if the operator reasonably believes the health or safety of a person in the accommodation unit is at risk; or
  1. in order to carry out urgent repairs; or
  1. otherwise in an emergency; or
  1. if the entry is authorised under a law.
  1. In this section—

complete response, to relevant correspondence, means a written response addressing each complaint, proposal and question in the relevant correspondence.

relevant correspondence means a written complaint, proposal or question about the operation of the retirement village.

representative, of a resident or former resident, means an entity—

  1. established to represent the interests of—
  1. the resident or former resident; or
  1. residents or former residents generally; and
  1. that is authorised by the resident or former resident to give relevant correspondence to the scheme operator.

136 Residents to respect rights of others

  1. A resident of a retirement village must respect the rights of other residents of the retirement village and other persons in the retirement village.
  1. Without limiting subsection (1), a resident of a retirement village—
  1. must not unreasonably interfere, or unreasonably cause or permit interference, with the peace, comfort or privacy of another resident; and
  1. must respect the rights of the scheme operator and the scheme operator’s representatives to work in an environment free from harassment and intimidation; and
  1. must not act in a way that adversely affects the occupational health and safety of a person who is—
  1. working in the retirement village; and
  1. employed, or otherwise authorised to work in the retirement village, by the scheme operator.
  1. In this section—

representative, of a scheme operator, means—

  1. if the scheme operator is a corporation—an executive officer, employee or agent of the corporation; or
  1. if the scheme operator is an individual—an employee or agent of the individual.

191 Tribunal orders generally

  1. The tribunal may make the orders the tribunal considers to be just to resolve a retirement village issue.
  1. For example, the tribunal may make any 1 or more of the following orders—
  1. an order for a party to the issue to do, or not to do, anything (an enforcement order);
  1. an order requiring a party to the issue to pay an amount (including an amount of compensation) to a specified person (a payment order);
  1. an order that a party to the issue is not required to pay an amount to a specified person;
  1. if the issue is a retirement village dispute—
  1. an order setting aside the mediation agreement between the parties to the dispute; or
  1. an order giving effect to a settlement agreed on by the parties to the dispute.
  1. An order may specify a time for compliance with it.
  1. Without limiting subsection (1), this section applies if a person applies for a tribunal order under section 169, 170, 171 or 171A.
  1. [22]
    Relevant clauses of the lease are as follows:

4 The Role of us and the Manager

We own and operate the Village. We have appointed the Manager to manage the Village on our behalf.

The Manager may perform any of our obligations and exercise any of our rights under this Lease on our behalf.

10.10 Laws

You must not breach any laws, or reasonable conditions set by us, relating to the use or occupation of your Unit.

10.12 Visitors

You may have a Visitor stay in your unit for temporary visits of up to one month (no aggregate) in any 12 month period. You may only have your Visitor stay in your Unit with you longer periods if we consent.

12.1 No nuisances or illegal acts

You must not do, or keep, anything in your Unit or in any other part of the Village that:

  1. is annoying, hazardous, noisy or a nuisance to any other person in the Village or the neighbourhood or that will harass, intimidate or bully such a person;
  1. unreasonably interferes with the use and enjoyment of the Village by other persons; or
  1. is illegal or is for an illegal purpose.

You must not make any unreasonable demands on us, the Manager, the Village Manager or any Village staff.

12.10 Village Rules

We may from time to time make rules or bylaws about Units, the use and enjoyment of the Community Areas and Facilities and behaviour in the Village. We may replace or amend these Village Rules from time to time. You must comply with these Village Rules provided they do not conflict with your rights or obligations under this Lease.

20.3 Our rights to terminate on 2 months’ notice

We may terminate this Lease by giving you at least 2 months' written notice if:

  1. you have committed a material breach of this Lease;
  1. we reasonably believe you have abandoned your right to reside in the Village; or
  1. we, and a person who has assessed your care needs under section 22.4 of the Aged Care Act 1997 (GU), reasonably believe that your Unit is a type of accommodation that is now unsuitable for you.

In these circumstances the Termination Date is the date stated in our notice.

20.4 What is a material breach

For clause 20.3(a), you will commit a material breach of this Lease if you:

  1. …
  1. …
  1. have a Visitor stay in your Unit in breach of clause 10.12;
  1. …
  1. conduct yourself in such a way as to bring the Village into disrepute or substantially detract from, or interfere with, the rights, peace and enjoyment of other Residents in the Village;
  1. conduct yourself in such a way so as to materially impede Village staff from performing their duties properly;
  1. repeatedly fail to comply with this Lease or the Village Rules;
  1. …

Background

  1. [23]
    Ms Debra Ann Winter was the Regional Operations Manager Qld for Retirement Living. In her capacity as Regional Operations Manager, she oversaw and provided operational support to the managers of the retirement villages within Queensland, including the Village.
  2. [24]
    The Manager of the Village is Mary Lee Barratt. The former manager was Patrick Hallahan.
  3. [25]
    Ms Winter reports that the dispute between the Village Operators and Mr Sonerson follows, and is the culmination of, a long history of complaints, disputes and disturbances with Mr Sonerson. Throughout the period, from 2017 to filing of the application (November 2022), she has observed Mr Sonerson's behaviour escalate, becoming increasingly erratic and aggressive.
  4. [26]
    The four areas of complaint are that Mr Sonerson allegedly:
    1. Filmed residents and recorded residents without their permission;
    2. Sent aggressive, offensive and disrespectful emails and letters to other residents and staff;
    3. Posts similar material on his Facebook page;
    4. Verbally abuses and/or disrespects resident and staff.

Detailed allegations

  1. [27]
    Ms Winter reports since January 2022, Mr Sonerson has been agitating a complaint in relation to certain non-residents living with residents on a short and medium-term basis. The circumstances of those non-residents and the reasons why they are currently living with residents are known to the management of the Village and she advises they are being actively managed and monitored.
  2. [28]
    She advises that the Village management have attempted to resolve Mr Sonerson's complaint, whilst respecting the interests and protecting the privacy of each of the concerned residents and the circumstances of their living arrangements.
  3. [29]
    Ms Winter refers to the experiences of one particular person who has been targeted by Mr Sonerson and is affected by his behaviour. To maintain her anonymity, I will refer to that person as Ms X.
  4. [30]
    Ms X is in her late 70s and suffers from a number of medical conditions. She owns a two-bedroom unit in the village. In the past, she has been an active member in the Residents Committee and in organising activities for village residents. She has an adult son who is on a disability pension who resides with her from time to time with the approval of the Village Operators. The son suffers from a medical condition which is associated with chronic pain that necessitated him in times past consuming large quantities of prescribed opioid medication. More recently, he has been prescribed medicinal cannabis oil which, according to Ms X, has been very effective in controlling his pain. Ms X’s son has had and continues to have difficulty finding suitable accommodation for himself, particularly during the Covid period.
  5. [31]
    Mr Sonerson is aggrieved that the adult son is allowed to live in the Village and he sees it as contrary to the rules of the village even though Ms X has the approval of the Village Operator.
  6. [32]
    Mr Sonerson has formed the view that Ms X’s son is a drug addict and wants him removed from the village. To this end he has engaged in conduct directed at Ms X, her son, some of the residents who have supported her and Village staff.
  7. [33]
    In the course of communications and dealings with Village Staff, residents of the Village, and with Mr Sonerson himself, Ms Winter says she has observed and believes that Mr Sonerson 's behaviour is:
    1. causing significant distress to other residents, their visitors and guests, interfering with the peace, comfort and privacy of those residents, and adversely impacting their mental health, quality of life and use and enjoyment of the Village;
    2. causing reputational damage to the Village, as residents and their visitors and guests have reported to her that they do not feel safe within the Village premises;
    3. adversely affecting the occupational health and safety of people working in the Village and employed by the Village Operator, and interfering with the rights of those people to work in an environment free from harassment and intimidation;
    4. impacting retention of residents at the Village, with at least three residents departing from the village in circumstances related to Mr Sonerson's conduct towards them; and
    5. impacting the Village Operators' ability to retain staff at the Village (having directly led to at least one Manager having to be redeployed to another village).
  8. [34]
    Mr Sonerson was served with a formal warning on 10 February 2022. That letter relevantly stated, omitting formal parts:

I am writing in relation to serious concerns we have with your behaviour towards staff and other residents of Hibiscus Nambour.

We have recently received complaints from residents and staff, alleging threatening and intimidating behaviour by you, including:

  1. filming residents and recording conversations with them without their permission;
  1. sending offensive and disrespectful emails and letters to residents and staff;
  1. posting material to the Hibiscus Nambour Facebook page deriding other residents and village management; and
  1. verbally abusing residents and staff.

Such behaviour is contrary to section 136 of the Retirement Villages Act and clause 12 of your lease (as set out further below).

While I can understand that disputes occur or you may have concerns you wish to raise, the behaviour outlined above is never acceptable. I note that we have previously written to you regarding similar complaints that have been made about your behaviour.

The safety, well-being and quiet enjoyment of all residents is Lendlease's priority, and we need to ensure that no residents of Hibiscus Nambour are subject to intimidation, harassment or interference with their rights to quiet enjoyment.

Breaches of your Lease and the Retirement Villages Act (Act)

Residents to respect the right of others - section 136 of the Act

  1. A resident of a retirement village must respect the rights of other residents of the retirement village and other persons in the retirement village.
  1. Without limiting subsection (1), a resident of a retirement village—
  1. must not unreasonably interfere or unreasonably cause or permit interference with the peace, comfort or privacy of another resident. and
  1. must respect the rights of the scheme operator and the scheme operator's representatives to work in an environment free from harassment and intimidation, and
  1. must not act in a way that adversely affects the occupational health and safety of a person who is—
  1. working in the retirement village; and
  1. employed, or otherwise authorised to work in the retirement village, by the scheme operator.

Residents living together in a village - clause 12 of your Lease

12.1 No nuisances or illegal acts

You must not do, or keep, anything in your Unit or in any other part of the Village that:

  1. is annoying, hazardous noisy or a nuisance to any other person in the Village or the neighbourhood or that will harass, intimidate or bully such a person;
  1. unreasonably interferes with the use and enjoyment of the Village by other persons,- or
  1. is illegal or is for an illegal purpose.

Formal Notice

This letter is a formal warning that we will not tolerate any further breaches by you of the obligations in your lease or at law as outlined above.

Please note that if you continue to engage in such behaviour, we may consider further action against you to resolve/the situation.

Next steps

I am prepared to discuss the matter further should you have any queries.

  1. [35]
    Mr Sonerson requested further details of the incidents referred to in the letter of 10 February 2022.
  2. [36]
    Nevertheless, Mr Sonerson responded to the specific allegations in an email dated 10 February 2022. His responses were in most cases a denial but also contained abusive and disrespectful comments.
  3. [37]
    The Applicant provided the further details in an attachment to their letter of 23 February 2022.

Behavior referenced in our letter dated 10 Feb 2022

Summary of incidents/complaints

Date

Complaints from residents and staff

Complaint in writing from a resident: stating that Allan had advised Centrelink that her son was committing fraud. This was investigated but not upheld by Centrelink. Resident complained of being harassed by Allan causing her a great deal of anxiety and feeling very vulnerable and unsafe in the Village.

  1. -regarding various accusations Allan made about her son being a drug addict and stealing furniture, which are denied by the resident. Resident advises that these accusations are greatly compromising her psychological health.

27.1.22

 

Complaint in writing from resident regarding messages Allan had posted on Facebook, and repeated text messages to her (including asking if her and another resident were ‘getting it on’) after she had requested him to stop texting her.

31.1.2022 (date filed)

 

Email from resident to Mary Lee complaining about Allan‘s Facebook posts about Mary Lee and stating that ‘quite a few residents are disgusted with what Allan is saying’, and that ‘it is so upsetting to our Village residents who are on Facebook’.

2.2.2022

 

Complaint in writing from resident regarding Allan's offensive remarks towards her and other residents with sexual connotations (including asking if residents were ’fornicating'). Complaint states that it is well known that when Allan drinks he becomes verbally aggressive and that other residents are afraid of him.

4.2.2022

 

Email from an anonymous email address providing several examples of Allan posting to the Village Facebook page and complaining that Allan's actions are causing a great deal of stress in the village.

5.2.2022

Filming residents and recording conversations

Allan sent three videos of            to Mary Lee.

19/1/2022

 

Written complaint from resident referencing Allan photographing her on 28.1.2022.

27.1.2022

 

Complaint from resident that residents are being videoed and recorded without permission when outside or near Allan's home.

31/1/2022

 

Allan took his $30,000 high end camera and zoom lenses to a resident's home and filmed illegally without the resident's knowledge (Allan's admission in his email 3.2.22).

3.2.22

 

Letter from Allan to Nathan Cockerill containing an excerpt of a letter referencing

My only response to your perceived threat to me, is to do exactly what you don't want me to do. Go to the Police with your diatribe and ask for a restraining order. Then watch yourself become the laughing stock of not only the QPS, but also the Residents of Hibiscus Nambour. ”You are just another pathetic, manipulative woman and it is about time was aware of your true thoughts and actions to thankfully have removed from the Village. You even stopped at my gate last evening on your way to put your useless threat in my letterbox. I am the one who needs a Restraining Order."

24.1.2022

 

Letter from Allan to resident stating that she is just another pathetic, manipulative woman’.

25.1.2022

 

Letter from Allan to all residents naming resident's son and accusing him of drug use and accusing the resident of defrauding the Government.

 
 

Email to Nathan Cockerill including the following: 'I look forward to Thursday and showing Qld their pathetic excuse for a Regional Manager. I will be releasing the video of coming to my place with Kelly Luck (first meeting) and abusing me for having the Police here. Doh, male hating Deb. I was assaulted on my property and when I asked for ID later, Deb said it is a private matter. Nathan Cockerill, you will remember this male haters’ numerous emails about new keys to the clubhouse I opened and closed each day. Have a reread Nathan. The Media will love this inane male hater you have as an R.M. Why hasn't              gone through her? She has the same low opinion as have the majority here at Nambour Slum'

 
 

Mary Lee sends an email out to all residents regarding a heat wave occurring at the time. Allan alters the message from “stay safe” to “stay safe from drug addicts” and posts this to the resident Facebook page.

 
 

Email to Dale Connor, Nathan Cockerill, Debra Winter and Mary Lee Barratt from Allan stating another resident is a 'sack of shit', 'stupid bitch', 'gutless', 'spineless', 'liar' and 'pathetic'.

 

Posting material to the Nambour Facebook age deriding other residents and village management

See attached screen shots that were emailed to Lendlease.

 

Verbally abusing residents

Complaint in writing from resident regarding Allan's offensive remarks towards her and other residents with sexual connotations (including asking if residents were ‘fornicating’). Complaint states that it is well known that when Allan drinks he becomes verbally aggressive and that other residents are afraid of him.

4.2.2022

  1. [38]
    The Applicant’s letter of 23 February 2022 detailed further breaches of Mr Sonerson’s obligations under the Residence Contract and Act. Those details were:
    1. An email dated 11 February 2022 to Debra Winter (copying Dale Connor, Nathan Cockerill and Mary Lee Barratt) stating that:
      1. "The full video is there for whoever wants to know what an embarrassment you are."
      2. “Perhaps these unsubstantiated nor true allegations are a part of your‘s and Mary Lee's fantasy world, but I know for a fact that both of you are liars... Pure and utter Debra shite.”
      3. “ .. you are very obviously, even more stupid than I gave you credit for, or perhaps you are also on drugs?”
      4. “As I said earlier, you have a hatred for single males in the Village.”
      5. “TRUTH. You should look that up in the dictionary, Debra, as it appears to be outside your scope of ethics or integrity.”
      6. “This was my reply that shows how quickly I verbally abuse your screwed up staff, after she raced off to the toilet in tears.’
      7. Referring to Debra Winter as ‘Debris Winter'.
    2. An email dated 18.2.2022 to Mary Lee Barratt (CC Dale Connor, Nathan Cockerill and Debra Winter) stating that:
      1. “I don't want bullshit you can later deny”.
      2. “All these emails will be on my FB page if I don’t have my answers this afternoon. My reputation can’t be any worse off, your can.”
  2. [39]
    Ms Winter’s affidavit attaches a compilation of Facebook posts by Mr Sonerson. It is not necessary to refer to all of them but this is an example:

My apologies people. A couple of residents asked me whilst on Tia's walk, what I was talking about. For those not in the loop or had anything stolen. … drug addict son has been living here for 11 months and Mary Lee approves under the Privacy Act. I know your contract says INDEPENDENT LIVING IS A BASIC FUNDAMENTAL REQUIREMENT and VISITORS CAN ONLY BE HERE FOR 4-6 WEEKS but this is swept under the table when Mary Lee and Debra Winter are in control. Welcome to the next slum area of Nambour. This is ….  best friend, relaying her knowledge of … She coerced me into relaying a complaint to [email protected] General Manager and then denied saying it. Pity about the CCTV I have after being assaulted by …'s grandchildren about 18 months ago. Volume up people and if you wish to hear the other 3 parts of this video, I will email to you. "Can't be trusted" definitely rings a bell. Poor… had an envelope she left on her screen door with cash to pay a contractor who was arriving while she was out. Someone's regular visitor was seen inside her gate the same morning. I will be lodging complaints with the Dept Fair Trading, Consumer Affairs and AQRV on Sunday and then all Australian Media email addresses I have in my possession (227 at the moment) It is our Village and I will not let it be turned into a Drug Rehabilitation Centre at our expense. I sent a 6 page letter to Nathan on Monday morning and leave not had a reply and now the gloves come off. It is our Village and we need to protect our lifestyle without children, who's parents couldn't control. With respect. non-resident, who is residing here and how residents are in living in fear. In 6 years of living here, there have been only two vehicle related crimes. How strange that both relate directly to … in the last 3 months. Definitely not a coincidence after your admission that he is a drug addict and now about to be ...’s Carer? How does a person on a Disability Pension, qualify to be a Carer when he can't do normal work. Thank you so much from the Hibiscus Residents, for your recorded information and help in allowing all of us to know the facts. Lendlease advertise INDEPENDENT living, but not at Nambour. Allan It is our Village people and Nathan Cockerill, G.M. of Lendlease will be given all information tomorrow in regard to drug addicts and illegal residents who are living here. The only reason I post this is that  … has tried to make me out to be an instigator of her lies. Tomorrow a very informative letter will be sent Nathan Cockerill and any media I think will be a help in maintaining an Independent living for People who have decided to live here under those advertised conditions.

(I have redacted the identity of some individuals referred to in the email but otherwise reproduced the posting as published)

  1. [40]
    The Applicant arranged a mediation with Mr Sonerson as a precursor to these proceedings. They nominated 14 March 2022 and advised Mr Sonerson to have a lawyer or support person accompany him. Mr Sonerson declined to meet with the Applicant.

Mr Sonerson’s response

  1. [41]
    Mr Sonerson’s response is that there are only 6 persons who he alleges have filed false complaints against him. He alleges Ms Winter’s use of the term ‘another resident’ to protect the anonymity of the resident is confusing and gives the impression that there are over 30 complainants. I agree that the use of the term, although well meaning, does cause confusion.
  2. [42]
    Mr Sonerson says he has been shown no respect by Ms Winter or other members of the management.
  3. [43]
    He has provided nine references as to his good character from residents who have identified themselves.
  4. [44]
    The most significant issue which has caused ongoing conflict between the Village Management and Mr Sonerson has been the resident Ms X who, with the approval of management, has been allowed to have her adult son reside with her as a visitor. Mr Sonerson appeared to have difficulty in accepting that approval had been given for this state of affairs to continue.
  5. [45]
    In his statement[8] he responded to the Applicant’s detailed allegations by interposing his response in the documents with different font or coloured font. The material is voluminous and at times confusing.
  6. [46]
    The Applicant sets out the letter of complaint from the resident Ms X. It reads as follows:

So, despite constantly searching for somewhere to live, he is still with me and again, our manager has been kept informed of the lack of progress.

Lately two residents here, one male and one female, have started sending emails and letters of an offensive nature objecting to my son being here and causing me much anxiety.

The female, [resident's name], is very verbally aggressive and her attitude to our manager is offensive and disrespectful.

The male, Allan Sorenson, is also the same (in emails and letters) and I have copies of his correspondence in which he states, among other things, that he contacted Centrelink and reported my son for defrauding Centrelink. This resulted in an investigation and my son lost one and half payments, causing him extreme anxiety as he had regular payments, such as car registration, automatically deducted from his bank account. Refer attachment

The investigation showed no evidence of fraud but he will not get that money back.[9]

  1. [47]
    Mr Sonerson’s response was:

Could [resident] explain why [resident's son] was penalised by Centrelink, if he had not done anything to breach their guidelines? The red writing above is [resident's].

Surely this is an outrage if he had not committed an offence? ls Centrelink to blame?'

Why could Centrelink treat [resident's son] like this if there was no case of him lodging claims that were not FRAUDULENT?

Does [resident] want to share the outcome to me (the male) and 3 others (yes 3 and one is a close friend to vou), who lodged complaints with Centrelink that you were defrauding the Australian Taxpayer, by failing to be truthful when you lodged a signed declaration for an increase.

We believe the necessary paperwork was provided by the Lendlease Manager who enabled you to lodge a false claim for a single occupant and the Manager was previously aware of this stipulation?

It appears to be missing from this communication.

  1. [48]
    Mr Sonerson sent the following email to Ms Winter and others on 3 February 2022.

The one thing that is missing in all your replies to the communications from Lorraine and myself, is to deny nor confirm, our well known fact that [a resident’s] son [named] is both a prescription and cannabis dependent addict. Strange how both [resident] and myself have been offered the door in previous encounters with Debris for nothing but standing up for ourselves. Yet, we have a 49 year old non resident, confirmed addict who is to be allowed to continue his 11 month tenancy.

I am a bird photographer and have over B30,000 of high-end cameras and zoom lenses. Once I knew where the addict was visiting for an hour each morning and afternoon, I went with my gear.

Riveting stuff and highly illegal what the camera caught, and not an advertisement that lendlease will appreciate.

In Debra Winters letter via email to me on Feb 10th, she turned the above into “Allan illegally entered a resident’s unit without their knowledge and took photos and topped it off (Allan's own admission)”

I need a reply by close of business tomorrow so I may relay to the other 38 Residents who are willing to sign a petition and another avenue we are pursuing to have him removed from the Village.

I hear the Clubroom has been found open in the evening and in the morning on several occasions recently, even though it had been locked earlier. Very strange.

  1. [49]
    In respect to the allegation that he abused staff Mr Sonerson responded:

I swear on my Mother’s and my brother Dennis’s grave and Tia's life and all I hold dear to me that l have not verbally abused  any residents or staff. Time to put up or shut up you male hating bitch. If this is the pathetic depths that Mary Lee has sunk  to, in her Quest for an OAM then we now know she is not for us.

Please give me the times, date and context for these delusions and pathetic fabrications of your OAM seeking excuse for a manager, all is the same as your earlier defamatory and unfounded assertions of alleging threatening and intimidating behaviour????

You, Debra Winter are reading me the riot act for absolute made up shite, yet fail to answer my complaints against you. Attack is your only defense because we are right. As others in here have said, you are totally incompetent.

This is a Formal Notice Debris, that I will not accept your threatening and intimidating letter. This amended false complaint will be posted on the local FB page. Your vindictive, unsubstantiated drivel will not be tolerated. This will also forwarded and added to the Government Dept that I lodged my complaint with last Monday.

We don't have a Committee, nor a ‘Have a chat with ?’ this month and people are entitled to see the deplorable depths, Debris Winter and Mary Lee Barratt (I WANT THAT OAM) will plunge to conceal the truth...

I would get more honest answers at the local rubbish dump”,

Resolution

  1. [50]
    The Applicant seeks orders as well as declaratory relief against Mr Sonerson.
  2. [51]
    Section 60 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) provides for such relief as follows:

60  Declarations

  1. The tribunal may make a declaration about a matter in a proceeding—
  1. instead of making an order it could make about the matter; or
  1. in addition to an order it could make about the matter.
  1. The tribunal may make an order it considers necessary or desirable to give effect to a declaration under subsection (1).
  1. A declaration under subsection (1) is binding on the parties to the proceeding mentioned in the declaration.
  1. The tribunal’s power under subsection (1) is in addition to, and does not limit, any power of the tribunal under an enabling Act to make a declaration.
  1. The tribunal’s power to act under subsection (1) or (2) is exercisable only by a legally qualified member.
  1. [52]
    It has been held previously by the Appeal Tribunal in Randall v Body Corporate for Runaway Cove Bayside[10] that s 60 does not give the Tribunal power:

Simply to make a declaration, not ancillary to, or in lieu of, another order which it could make’. That is, it does not have a power similar to that of the Supreme Court that is confirmed by s 128 of the Supreme Court Act 1995 (Qld). In the absence of an expressed power to entertain a proceeding simply for the purposes of giving a declaration, it does not have the power to grant and make a declaration unless such power is expressly given to it by an enabling act.

  1. [53]
    In Ainsworth v Criminal Justice Commission[11] in speaking of the judicial power to make declarations the High Court stated:

It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which ‘[i]t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise’. However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The persons seeking relief must have ‘a real interest’ and relief will not be granted if the question ‘is purely hypothetical’, if relief is ‘claimed in relation to circumstances that [have] not occurred and might never happen’ or if ‘the court’s declaration will produce no foreseeable consequences for the parties’.[12]

(footnotes and citations omitted)

  1. [54]
    The application is brought in the Tribunal exercising its original jurisdiction, pursuant to s 191 of the Act, where there is a retirement village issue about an enforcement order or a payment order. It follows then, in my view, that the Tribunal has jurisdiction to make the orders sought that Mr Sonerson not engage in conduct complained of, and consequently, declarations in addition to those orders relating to the conduct of Mr Sonerson.
  2. [55]
    The conduct alleged against Mr Sonerson arises from complaints by several residents and staff members. Mr Sonerson rejects a lot of the allegations and justifies his conduct in respect of other matters.
  3. [56]
    The manner in which the proceedings have been framed has been complicated by the redaction of names and the interlineation of responses by the opposing party to each allegation.
  4. [57]
    I have been asked to decide the matter on the papers which, in normal circumstances, would be unsuitable where there are disputed issues of fact.[13] However, in this case it is not necessary for me to prefer the evidence of one party over another as in many instances Mr Sonerson, by his own admission in the material filed, has disclosed conduct that is abusive of staff and residents. He has used offensive and derogatory language towards staff and residents. The material contains admissions that he has monitored the movement of residents, photographed them and threatened to publish the material. His general conduct which he has documented in correspondence with the Applicant and on his Facebook page clearly establishes conduct that brings the Village into disrepute.
  5. [58]
    I make no findings in respect of the numerous statements made by witnesses about Mr Sonerson’s conduct, as their evidence, other than facts admitted by Mr Sonerson, has not been tested or verified and remains disputed by Mr Sonerson. I make my findings solely on the basis of Mr Sonerson’s responses and the admissions contained in those responses.
  6. [59]
    The material filed by Mr Sonerson in response to his alleged conduct, in my opinion, establishes conduct that is abusive, harassing, bullying, demeaning, threatening, and intimidating it also has brought the Village into disrepute. Examples are referred to in paragraph [38] above. In addition, he has described the Village as a Drug Rehabilitation Centre in his Facebook page with an implied threat to release that information to the 227 Australian Media addresses he says that he has. He has also published doctored Village emails by Village Manager Ms Barratt describing the Village as a Rehabilitation and Child Minding Centre accompanied by photographs of marijuana leaves.
  7. [60]
    The admissions made by Mr Sonerson are sufficient for me to find that he has sent aggressive, offensive and disrespectful emails and letters to staff and some residents. He has posted material on his Facebook page which is defamatory of staff and residents as well as the Village itself.
  8. [61]
    Ms Winter’s responses, as well as the responses of other members of management in the written material, have always been respectful of Mr Sonerson.
  9. [62]
    Mr Sonerson fails to apprehend that it is the Applicant that owns and operates the Village, and it does so through its managers. The Applicant sets the rules.
  10. [63]
    I order that Mr Sonerson:
    1. not engage in behaviour that brings the Village into disrepute and/or detracts from or interferes with the rights, peace and enjoyment and privacy of other residents of the Village including behaviour of an abusive, aggressive, intimidatory, threatening, bullying, demeaning and/or harassing kind.
    2. not engage in conduct that materially impedes Village staff and/or agents from performing their duties;
    3. not engage in abusive, aggressive, intimidatory, threatening, bullying, demeaning and/or harassing behaviour towards Village staff, contractors or agents, residents, their visitors or guests. 
  11. [64]
    I make the following declarations:
    1. That Mr Sonerson’s conduct as described in these reasons has brought the Village into disrepute and amounts to a material breach of his contract with the Applicant;
    2. That Mr Sonerson’s abuse, disrespect, harassment and intimidation of the Applicant’s staff and residents as described in these reasons amounts to a breach of s 136 of the Retirement Villages Act 1999 (Qld) and of clause 12 of the Lease which breach is a material breach in accordance with Clause 20.4 of the Lease).

Footnotes

[1]Referred to as a residence contract under the Retirement Villages Act 1999 (Qld).

[2]The Act, s 154.

[3]Affidavit of Debra Ann Winter filed 22 November 2022 Exhibit DW-01 page 171.

[4]Ibid page 194.

[5]Ibid page 195.

[6]Ibid page 196.

[7]Ibid page 214.

[8]Respondent’s statement filed 24 January 2023.

[9]Ibid paragraph 21(b).

[10][2011] QCATA 10 at [31]-[34].

[11][1992] 175 CLR 564.

[12]Ibid 581.

[13]ACJ v AD [2023] QDC 176.

Close

Editorial Notes

  • Published Case Name:

    Keyton WA for Qld Pty Ltd v Sonerson

  • Shortened Case Name:

    Keyton WA for Qld Pty Ltd v Sonerson

  • MNC:

    [2024] QCAT 324

  • Court:

    QCAT

  • Judge(s):

    Member King-Scott

  • Date:

    05 Aug 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
ACJ v AD [2023] QDC 176
2 citations
Jump To
Cite 1 - [2023] QDC 176
Cite 2 - [2023] QDC 176
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
2 citations
Jump To
Cite 1 - (1992) 175 CLR 564
Cite 2 - (1992) 175 CLR 564
Randall v Body Corporate for Runaway Cove Bayside CTS 25498 [2011] QCATA 10
2 citations
Jump To
Cite 1 - [2011] QCATA 10
Cite 2 - [2011] QCATA 10

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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