Golding v Lusping Pty Ltd No 2
[2020] QCATA 150
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- Unreported Judgment
- Golding v Lusping Pty Ltd No 2[2020] QCATA 150
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Golding v Lusping Pty Ltd No 2[2020] QCATA 150
Golding v Lusping Pty Ltd No 2[2020] QCATA 150
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Golding v Lusping Pty Ltd No 2 [2020] QCATA 150 |
PARTIES: | PAUL HENRY GOLDING (applicant) |
| v |
| LUSPING PTY LTD (respondent) |
APPLICATION NO/S: | APL340/19 |
ORIGINATING APPLICATION NO/S: | OCL075-18 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 30 October 2020 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Howard Member Lumb |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – where leave to appeal previously granted – whether Applicant entitled to substantive relief – whether relief available under s 191 of the Retirement Villages Act 1999 (Qld) – orders made considered to be just to resolve the dispute Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 147(3). Retirement Villages Act 1999 (Qld), s 21, s 22, s 191, s 210. |
REPRESENTATION: |
|
Applicant: | Self-represented |
Respondent: | Butler McDermott Lawyers |
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
Introduction
- [1]By a Decision delivered on 10 September 2020 in this matter, this Appeal Tribunal granted leave to appeal to the Applicant, Mr Golding.
- [2]The reasons for the original Decision (‘the Initial Reasons’) are to be read in conjunction with these Reasons for Decision, including the nomenclature adopted in the Initial Reasons.
- [3]In addition to the grant of leave to appeal, the following orders were also made (numbered 2 to 4 inclusive):
- Each of the parties must file with the Tribunal and serve on the other party within 28 days of delivery of these reasons:
- (a)written submissions, no longer than 10 pages, addressing the following issues only;
- (i)whether the Appeal Tribunal has power to make orders under s 191 of the Retirement Villages Act 1999 (Qld) consequent upon the findings in the Reasons for Decision that, save for the categories of payment referred to in subclauses 3.1.1(ii), (iii) and (iv) of the Residence Contract, all amounts payable by the Applicant under clause 3.1.1 of the Residence Contract may not be increased above the CPI increase stipulated by clause 3.1.3 of the Residence Contract (‘the Findings’); and
- (ii)what orders should be made, including the amount of compensation (if any) payable to the Applicant, consequent upon the Findings; and
- (i)
- (b)any expert accounting evidence in relation to the question of the amount of compensation, if any, payable to the Applicant, or, alternatively, a detailed calculation (showing workings) of the amount of compensation the party submits is payable (if any) to the Applicant, consequent upon the Findings.
- Each of the parties may file in the Tribunal and serve on the other party written submissions, no longer than 10 pages, responding to the other party’s submissions and the expert accounting evidence or detailed calculation, within 14 days of service of the other party’s submissions and material pursuant to Order 2.
- The costs of the Application are reserved until final orders are made on the appeal.
- [4]Mr Golding provided written submissions dated 14 September 2020 and subsequently provided "Corrected Submissions" dated 28 September 2020.
- [5]The Operator provided written submissions dated 8 October 2020.
- [6]On 8 October 2020, Mr Golding advised the Appeal Tribunal that he had no submissions in response to the Operator’s submissions in respect of Order 3.
- [7]The remaining issues on appeal are:
- (a)whether the appeal should be allowed, which issue turns on whether Mr Golding is entitled to substantive relief;
- (b)whether relief is available under s 191 of the RVA and, if so, what relief ought to be granted; and
- (c)whether any, and if so what, order for costs should be made.
- (a)
Power to make orders under s 191?
- [8]Mr Golding submits that the respective subsections of s 191 clearly give the Appeal Tribunal the power to make the orders that he seeks.
- [9]The Operator submits that the circumstances of this matter satisfy 191 by way of the definitions set out under sections 21 and 22 of the RVA and the Appeal Tribunal has power to make orders under s 191.
- [10]The relevant provisions of the RVA are extracted at paragraph [9] of the Initial Reasons.
- [11]Section 191(1) provides that the Tribunal may make the orders the Tribunal considers to be just to resolve a ‘retirement village issue’. That phrase is defined in the Schedule by reference to s 22. By virtue of s 22(a) a retirement village issue is a ‘retirement village dispute’.
- [12]In our view, the Original Application raised a dispute about the parties’ rights and obligations under the Residence Contract and the RVA and constituted a ‘retirement village dispute’ within the meaning of the RVA (see s 21).
- [13]We also consider that none of the exceptions in s 210(1)(a) or (b) applies.
- [14]In our view, having regard to the above matters, and to the terms of s 191(1) and (4) of the RVA, the Appeal Tribunal has power to make such orders as are considered to be just to resolve the dispute between the parties.
What orders should be made?
- [15]Mr Golding seeks the following orders:
- The respondent (the Operator) must not increase any amounts payable by the applicant, under clause 3.1.1(i) of the Residence Contract and Service Agreement, above the CPI increase stipulated by clause 3.1.3 of the Residence Contract and Service Agreement.
- For the purposes of calculating the amount of future fees payable, and payment of a refund of excess fees already paid, the invoiced fee for June 2018 ($154.27 + GST) shall be deemed to be the most recent correct amount paid under clause 3.1.1(i) of the Residence Contract and Service Agreement.
- The amount payable by the applicant, under clause 3.1.1(i) of the Residence Contract and Service Agreement for the next new quarter from the date of this order, shall be the deemed amount in Order 2 increased from July 2018 as stipulated by clause 3.1.3 of the Residence Contract and Service Agreement.
- The amount of refund payable by the respondent to the applicant shall be the difference between the amount that should have been paid by the applicant under clauses 3.1.1(i) and 3.1.3 of the Residence Contract and Service Agreement, and the amount invoiced from after June 2018 to the date of this order.
- The respondent must, within 14 days of the date of this order, refund to him the $227.40 excess amount paid by the applicant under clause 3.1.1(i) of the Residence Contract and Service Agreement above the CPI increase stipulated by clause 3.1.3 of the Residence Contract and Service Agreement.
- [16]The Respondent submits the Appeal Tribunal should make orders that:
- save for the categories of payment referred to in subclauses 3.1.1(ii), (iii), and (iv) of the Residence Contract, all amounts paid by the applicant under clause 3.1.1 of the Residence Contract may not be increased above the CPI increase stipulated by clause 3.1.3 of the Residence Contract;
- all future fees payable by the applicant under 3.1.1(i) of the Residence Contract may not be increased above the CPI increase stipulated by 3.1.3 of the Residence Contract;
- the respondent pay the applicant the sum of $227.40 as set out in Table 1 of the ‘corrected submissions by Applicant’ dated 28 September 2020.
- [17]We do not consider that there is any material difference between the orders sought by the respective parties. Mr Golding seeks a further order that sets a “datum point” as he describes it as the basis for calculating future fees. We consider such an order to be an appropriate one which should reduce the risk of dispute concerning the calculation of future fees. The Operator has not opposed the making of an order in terms of order number 2 sought by Mr Golding and the Operator has accepted Mr Golding’s figure for the amount of compensation which was based on a calculation which incorporates the identified amount of $154.27 (plus GST) for the June 2018 fees.
- [18]Consistently with the Initial Reasons, and having regard to the parties’ submissions, including Mr Golding’s detailed calculations of the compensation payable, we consider that the following orders are just to resolve the dispute between the parties:
- (a)it is declared that the charges payable by Mr Golding under subclause 3.1.1(i) of the Residence Contract were not able to be, and may not be, increased above the CPI increase stipulated by clause 3.1.3 of the Residence Contract;
- (b)it is ordered that future charges payable by Mr Golding under subclause 3.1.1(i) of the Residence Contract shall be calculated by reference to the invoiced fee for June 2018 of $154.27 (plus GST) with any increase limited to the CPI increase stipulated by clause 3.1.3 of the Residence Contract;
- (c)the Operator must, within 14 days of date of delivery of these reasons, pay to Mr Golding the sum of $227.40.
- (a)
- [19]With respect to paragraph 18(c) above, the Respondent accepts that Mr Golding is entitled to payment of the sum of $227.40. Mr Golding seeks payment within 14 days. The Respondent has not proposed a time for payment. In light of the relatively modest amount of the payment, we consider a period of 14 days to be reasonable.
- [20]Accordingly, the appeal should be allowed. Pursuant to s 147(3) of the QCAT Act, the decision below should be set aside and a decision substituted in terms accordant with paragraph 17 above. We make orders in those terms.
Costs
- [21]The Initial Reasons did not provide for the making of submissions on costs. Nevertheless, the Operator has made submissions as to costs which it seeks against as against Mr Golding on the indemnity basis.
- [22]Mr Golding should be provided with an opportunity to make submissions on costs.
- [23]We direct that Mr Golding file in the Tribunal and serve on the Operator, within 21 days of delivery of these reasons, written submissions, no longer than 5 pages, on the question of costs, including submissions in response to the application of the respondent for costs of the application for leave to appeal and appeal. We also direct that the Respondent may file and serve submissions in response to any submissions filed by the Applicant.