Bell v Yeronga Village Pty Ltd
[2025] QCATA 12
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- Unreported Judgment
- Bell v Yeronga Village Pty Ltd[2025] QCATA 12
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Bell v Yeronga Village Pty Ltd[2025] QCATA 12
Bell v Yeronga Village Pty Ltd[2025] QCATA 12
QUEENSLAND CIVIL AND ADMINISTRATIVE TRUBUNAL
CITATION: | Bell v Yeronga Village Pty Ltd [2025] QCATA 12 |
PARTIES: | reginald john bell (applicant) v YERONGA VILLAGE PTY LTD ATF THE YV UNIT TRUST T/AS THE VILLAGE RETIREMENT GROUP (respondent) |
APPLICATION NO: | APL081-23 |
ORIGINATING APPLICATION NO: | OCL102 of 2021 |
MATTER TYPE | Appeals |
DELIVERED ON: | 4 February 2025 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
MEMBER: | Judicial Member Stilgoe OAM |
ORDER/S: |
|
CATCHWORDS: | APPEAL – RETIREMENT VILLAGE – leave not required as appeal on legal issues only – where Tribunal failed to respond to a substantial, clearly articulated argument raised squarely on the material before it – where Appeal allowed. REAL PROPERTY – RETIREMENT VILLAGE – whether the respondent’s conduct was misleading and deceptive under s 86 of Retirement Villages Act 1999 (Qld) – where contract previously terminated – where available remedy is the setting aside of the contract – whether applicant entitled to compensation for breaches of ss 60 and 67 of Retirement Villages Act 1999 (Qld) – where evidence provided was insufficient – Applications dismissed. Queensland Civil and Administrative Tribunal Act 2009 s 142, s 146 Retirement Villages Act 1999, s 9, s 21, s 22, s 60, s 67, s 86, s 167, s 169, s 170, s 171, s 173, s 191, s 193 Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 Brown and Anor v Noosa Constructions Pty Ltd [2012] QCATA 194 Chancellor Park Retirement Village Pty Ltd v Retirement Village Tribunal [2004] 1 Qd R 346 Dranichnikov v Minister for Immigration and Multicultural & Indigenous Affairs (2003) 77 ALJR 1088 Leach and Anor v Wishart Christian Village Association Inc [2012] QCAT 467 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 The King v Wallis (1949) 78 CLR 529 Young v Lawton [2018] QCATA 98 |
APPEARANCES: | 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]In November 2019, Reginald Bell purchased a right to reside in a retirement village operated by Yeronga Village Pty Ltd. He lived in the village until he sold his right in September 2021.
- [2]In August 2021, Mr Bell filed a ‘Dispute notice for referral to mediation’ alleging Yeronga had breached provisions of the Retirement Villages Act 1999.
- [3]The mediation was unsuccessful. Mr Bell filed a further application for a Tribunal hearing seeking:
- an order, under s 170(2), setting aside the residence contract;
- orders, under s 193(2), requiring Yeronga to compensate loss and damages to Mr Bell; and
- any other orders, under s 191, considered by the Tribunal to be just to resolve the matter.
- [4]The Tribunal dismissed Mr Bell’s applications. He now appeals that decision submitting that the Tribunal erred in:
- failing to consider its power to grant relief under s 191, via s 191(4) or s 167;
- failing to consider its power to grant relief under s 193; and
- concluding that relief under s 170 is not available to former residents.
- [5]Because this is an appeal only on questions of law, leave to appeal is not necessary.[1] It is an error of law if the Tribunal failed to respond to a substantial, clearly articulated argument raised squarely on the material before it.[2] It is also an error to not genuinely or adequately consider mandatory or other relevant criteria governing a statutory discretion conferred on it.[3]
Did the Tribunal fail to consider its power to grant relief under s 167 or s 191?
- [6]The Tribunal dismissed Mr Bell’s applications because he was not a resident of the village as is required to make an application under s 170.
- [7]It did not consider the alternative grounds for relief under ss 167 or 191. Section 167 allows a party to refer a dispute QCAT. Section 191 gives the tribunal powers to make orders.
- [8]Mr Bell’s applications clearly showed his intention to seek relief for breaches of ss 60, 67, and 86 which is only available under s 191. Mr Bell says that Yeronga breached s 86 which states that a person, defined as a scheme operator or a representative of a scheme operator, “must not engage in conduct that is misleading or deceptive or is likely to mislead or deceive.”, s 60 which provides that the former resident and the scheme operator are to agree in writing on the resale value of the right to reside in the accommodation unit and s 67 which provides that the resale value must be updated every 3 months.
- [9]Yeronga points out there is no mention of s 167 in either of Mr Bell’s applications. Yeronga also points out, and the transcript shows, that Mr Bell did not press a claim for breaches of ss 60 and 67 the hearing.
- [10]Despite the absence of submissions, the Tribunal had notice of Mr Bell’s additional claims and should have considered them. Its failure to do so was an error of law. I allow the appeal on this ground.
Did the Tribunal fail to award compensation to Mr Bell?
- [11]Because the Tribunal failed to consider its power to grant relief under ss 167 or 191 it stands to reason that it did not award compensation.
Did the Tribunal err in concluding that relief under section 170 is not available to former residents?
- [12]Mr Bell says that the term ‘resident’ in s 170 is intended to capture current and former residents because of the definition of ‘resident’ in s 21(3) which is indicative of an “inclusive, rather than exclusive attitude in relation to former residents in the context of the dispute resolution process”.
- [13]‘Resident’ is defined at s 9 as: “a person who has a right to reside in the retirement village”. ‘Former resident’ is defined as including a person who entered into a residence contract to secure their own right to reside in a retirement village.
- [14]Section 21 defines a retirement village dispute 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 the Act.” The definition of ‘resident’ in s 21(3) includes a former resident. That means that a former resident can be party to a retirement village dispute. They can also be party to a residential village issue, as it is defined in s 22(a).
- [15]Under s 22(b), a retirement village issue can also be an application under ss 169 to 171 and s 173.
- [16]Part 10 deals with applications to the Tribunal. Division 2 deals with retirement village disputes. There is only one section extant; s 167 that allows a party to refer a matter to the Tribunal.
- [17]Sections 169 to 171 and s 173 appear in Division 3 – applications about other retirement village issues. Section 169 refers to a resident’s right to apply for an order if threatened with removal, deprivation or restriction of their residential rights. Section 170 allows a resident to apply for order if scheme operator contravenes particular provisions. Section 171 states that a former resident may apply for order for payment of exit entitlement. Section 173 refers to an application to the Tribunal by a group of residents.
- [18]The fact that Part 10 Division 2 makes a clear distinction between residents and former residents, and a distinction between retirement village disputes and other issues, leads to an inescapable inference that the reference to ‘resident’ in s 170 should be read in its ordinary terms. There is no justification for expanding the definition to include a former resident, particularly in light of the specific reference to the rights of a former resident in s 171. The expansive definition in s 21(3) cannot be imported into the definition of a ‘resident’ within s 170.
- [19]Mr Bell also points to s 191, which sets out the orders that the Tribunal may make with respect to a ‘retirement village issue’. Subsection 191(4) states that the Tribunal’s power to make orders applies when a ‘person’ applies for an order under section 170. Mr Bell says this reflects an intention to not exclude former residents from relief under s 170.
- [20]Section 191 sets out the orders the Tribunal may make for both retirement village disputes and retirement village issues. The term ‘persons’ is used in a generic sense to encompass the operator, residents, former residents and, perhaps, third parties. It does not demonstrate an intention to expand the ambit of the term ‘resident’.
- [21]As Chesterman J observed in Chancellor Park Retirement Village Pty Ltd v Retirement Village Tribunal:
The first thing to notice is the structure of s. 170. A resident may apply to a Tribunal for an order that a residence contract be set aside if a scheme operator has contravened s. 86 and the resident has suffered material prejudice thereby. The right to apply for relief is made to depend upon a contravention giving rise to material prejudice. Section 170 is found in pt 10 “Applications to Tribunal”. The powers conferred on the Tribunal which embarks upon hearing a retirement village issue are found in pt 11, “Tribunal Hearings”. The relevant sections are 191 and 193. This structure suggests that the facts giving rise to jurisdiction are pre-conditions to its existence and are antecedent and ancillary to the role of a Tribunal which is to decide whether a contract should be set aside and, if so, on what terms. The determination of the facts referred to in s. 170 do not necessarily arise in the course of the Tribunal’s decision-making. The necessary subject matter for the Tribunal is whether a contract should be set aside. The matters are different and can be decided separately.[4]
- [22]The identification of the Tribunal’s powers, once a retirement village dispute or retirement village issue has been decided, cannot retrospectively operate to expand the definition of ‘former resident’ in those sections that create the right to relief. There was no error in the Tribunal’s construction of s 170.
Did the Tribunal err in not providing relief under s 193?
- [23]Mr Bell did not provide comprehensive written submissions on this ground. However, he argues that it was an error of law for the Tribunal to not consider its power to grant relief under s 193.
- [24]Section 193 applies if a resident applies for a tribunal order under s 170. Yeronga argues that relief for breaches of s 86 is not generally available under s 191, as ss 170 and 193 provide a specific remedy for breaches of s 86 – the setting aside of the purchase contract.
- [25]It argues that, where there is a general statutory power and a specific one subject to conditions, the specific power must take precedence.[5] It argues, therefore, the general powers in ss 167 and 191 ‘yield’ to the specific ss 170 and 193 when s 86 is contravened. It submits that s 170 is the gateway that must be passed to exercise those powers to remedy a breach of s 86.
- [26]I agree with Yeronga’s submissions. In Leach and Anor v Wishart Christian Village Association Inc[6] the Tribunal concluded that an applicant alleging a breach of s 86 would have to fulfil the criteria of s 170 for relief to become available under s 191.
- [27]Further, Dixon J in Anthony Hordern and The King v Wallis stated that:
- [1]An enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course.[7]
- [28]The only relief available to Mr Bell for a breach of s 86 is the termination of the contract. As the contract was already terminated by Mr Bell’s own actions, and he is no longer a resident as required by s 170, there is no other order the Tribunal can make.
What to do with the original dispute?
- [29]Section 146(b) of the Queensland Civil and Administrative Tribunal Act 2009 provides that the appeal Tribunal may set aside a decision and substitute its own decision where an error of law is demonstrated.
- [30]I can also remit this matter for rehearing,
- [31]In Brown and Anor v Noosa Constructions Pty Ltd, the Appeal Tribunal said:
... it is appropriate for the Appeal Tribunal to consider those matters complained of in the appeal, where the facts are clear but insufficient reasons were given, and substitute its own decision and reasons with an appropriate amendment to the learned Member’s orders as required.[8]
- [32]I am mindful of the Tribunal’s mandate to deal with matters in a way that minimises costs to parties and is as quick as is consistent with achieving justice. The facts of this matter are not in dispute. The resolution of the dispute devolves into a question of law. Accordingly, I am of the view that I can consider the primary matter afresh and, if necessary, substitute my own decision.
Was Yeronga's conduct misleading and deceptive?
- [33]The Tribunal determined that Yeronga’s conduct was not misleading or deceptive. It also found that Mr Bell did not rely on Yeronga’s representations, if in fact, they were made. I have no reason to come to a different view.
- [34]I have already outlined that, even if Mr Bell was able to surmount these hurdles, the Act gives him no right to compensation. for misleading and deceptive conduct because the contract had already been terminated by mutual agreement.
Is Mr Bell entitled to compensation for breaches of ss 60 and 67?
- [35]Section 60 requires the parties to agree on the resale value of the residential unit. If the parties cannot agree, the operator is to obtain an independent valuation which then sets the resale value. Mr Bell agreed to the resale price[9] on 17 September 2020. There is no breach of s 60.
- [36]Section 67 requires the operator to update the resale value of the residential unit every three months. The unit sold in September 2021.
- [37]It is clear from the evidence that Yeronga did not comply with s 67, probably because it was actively seeking a contract from a particular prospective purchaser. That purchaser signed an application to reside in March 2021 but withdrew their interest in May 2021.
- [38]Mr Bell agreed to the resale price at $669,000. The property sold for $699,000. Mr Bell has not provided any evidence to suggest that this was a sale at undervalue. If he did have a right to compensation for a breach of s 67, he has not provided evidence of the quantum of that compensation.
Orders
- The appeal is allowed.
- The applications in OCL058 21 and OCL10221 are dismissed.
Footnotes
[1]Queensland Civil and Administrative Tribunal Act 2009 s 142 (“QCAT Act”).
[2]Dranichnikov v Minister for Immigration and Multicultural & Indigenous Affairs (2003) 77 ALJR 1088, 394; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421.
[3]Young v Lawton [2018] QCATA 98, [34].
[4][2004] 1 Qd R 346, 354.
[5]Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1, 7 (‘Anthony Hordern’).
[6][2012] QCAT 467, [17]-[18].
[7](1949) 78 CLR 529, 550.
[8][2012] QCATA 194, [27].
[9]Annexure D to the affidavit of Kathryn Gilhooley sworn 30 March 2022.