Ball v Keyton Holdings Pty Ltd [2025] NSWCATCD 128;

1. The proceedings were heard on 20 May 2025. At the hearing, Mr Ball appeared in person and Ms Johns, the regional operations manager of the respondent, appeared for the respondent.
2. The parties relied upon the documents and written submissions contained in a folder of documents which was admitted into evidence and marked Exhibit 1. During the hearing Mr Ball and Ms Johns made oral submissions.

1. During hearing Mr Ball said that the residents have agreed to make contributions to the Capital Works Fund held and operated by the respondent. Mr Ball said that on 10 May 2024 the residents approved contributions to the Capital Works Fund for the budget or financial year ending 2025 in the amount of $83,360.00 but have not approved expenses relating to the Capital Works Fund for that year. Mr Ball accepted that the residents have approved contributions to the Capital Works Fund for the for the budget or financial year ending 2026 in the amount of $168,173 but said the Residents have not approved expenses relating to the Capital Works Fund for that year.
2. Mr Ball says the respondent has paid expenses from the Capital Works Fund in the amount of approximately $50,000 for the financial year ending 2025 and is proposing to pay a further $50,000 from the Capital Works Fund for the financial year ending 2026. Mr Ball says that the residents have not been provided with information about these expenses. Mr Ball submits that in contravention of the requirements in section 114 of the Act, the respondent has paid and is proposing to pay expenses from the Capital Works Fund without the consent of the residents.
3. Ms Johns says that: -

(1) In relation to the financial year ending 2025, at a general meeting on 10 May 2024 the residents approved contributions to the Capital Works Fund in the amount of $83,360.00 and expenditure from the Capital Works Fund as itemised in the document titled "Refurbishment & Improvement Fund Budget For the year ending 30 June 2025". The expenditure included $50,000 for ". . . Roofing . . . Pointing and maintenance of villa asset" [Exhibit 1 pp 94 - 100].

(2) $50,000 has been paid from the Capital Works Fund for the financial year ending 30 June 2025 to meet repair and maintenance expenses for roofing. [Mr Ball says the residents did not approve this expense].

(3) In relation to the financial year ending 2026, at a general meeting on 9 May 2025, the residents approved contributions to the Capital Works Fund in the sum of $160,000 and expenditure from the Capital Works Fund as itemised in the document titled "FY26 Annual Capital Works Fund Budget." The expenditure included $50,000 for "Roofing" [Exhibit 1 pp 113 - 117].

(4) The expenditure approved on 9 May 2025 has yet to be paid from the Capital Works Fund. [Mr Ball says the residents did not approve this expenditure and the respondent has no right to deduct this expenditure from the Capital Works Fund].

1. There is no dispute that the disputed expenses relate to roof repairs. Mr Ball says the only information the residents have received in relation to these expenses is a letter from Diverse Carpentry Constructions to the Ms Narbeth dated 3 July 2025 [Exhibit 1 pp 101 - 103]. The letter records that Stone Wood Creations Pty Ltd t/a Diverse Carpentry Constructions "has been engaged for ongoing roof repair and maintenance works at Coastal Waters Retirement Village since around 2020." The letter itemises invoices and describing works that have been undertaken in the period from 11 July 2024 to 16 February 2025. The total amount of invoiced works is $51,249.
2. The Real Issue in dispute is whether the residents of the Retirement Village approved roofing expenditure in the total amount of $100,000 for the financial years ending 2025 and 2026 and whether the respondent is entitled to pay those expenses from the Capital Works Fund.

Relevant provisions of the Retirement Village Act

1. Section 114(1) of the Act provides that the operator of a retirement village must seek the consent of the residents of the village to the expenditure itemised in a proposed annual budget. Section 114 (2) - (6) set out procedures to be followed by the operator and the residents after the operator has sought the consent of the residents to the proposed annual budget.
2. Section 115(1) of the Act provides:

"If the residents of a retirement village refuse consent to the expenditure itemised in the proposed annual budget, the operator or a resident may apply to the Tribunal for an order in respect of the expenditure proposed for the financial year concerned".

1. Section 116 (1) (a) provides that a proposed annual budget is taken to be an approved annual budget if the residents of a retirement village consent to expenditure in accordance with the proposed annual budget. Section 116(3) provides than an operator must not expend money received by way of recurrent charges otherwise than in accordance with the approved annual budget or any amendment authorised under s117.

Evidence and findings relating to the Real Issue

1. The respondent relied on a statement of Linda Narbeth affirmed 7 July 2025. Ms Narbeth is the village manager of the Retirement Village.
2. In paragraphs 8 to 19 of her statement, Ms Narbeth sets out the process followed in relation to the budget for the financial year ending 30 June 2025. Ms Narbeth says [Exhibit 1 p89 - 90 [8] - [19]]:

(1) On 27 March 2024 a meeting was held with the Residents Committee representatives to distribute and discuss the proposed "FY25 Budget".

(2) On 2 April 2024 Mr Ball sent an email asking questions in relation to the Capital Works Fund, which she responded to by email on 2 April 2024. Ms Narbeth response states: "General maintenance of the asset including pointing and resetting of loose tiles etc have been included in the CWF over the past few years, therefore we expect further maintenance of the asset to occur in FY25" [Exhibit 1 pp 942- 93].

(3) On 11 April 2024 another meeting was held with the Residents Committee representatives to discuss the proposed FY25 Budget.

(4) On 1 May 2024 the FY25 Budget Pack was distributed to the residents. The Budget Pack include the following documents:

(a) "2024/25 Budget";

(b) "A Summary of Major Items of Income and Expenditure" recording income and expenditure and a recurrent charge of 9.5%;

(c) "Refurbishment and Improvement Fund Budget For the year ending 30 June 2025".

(5) At a general meeting on 10 May 2024 the residents voted to accept the expenditure detailed in the distributed FY25 Budget but rejected the proposed 9.5% increase of recurrent charges.

(6) On 15 May 2024 a revised FY25 Budget Pack including a proposed 6% increase of the recurrent charges for the FY25 was distributed to the residents.

(7) On 30 and 31 May 2024 the Residents Committee conducted a ballot vote of the residents who consented to a 6% increase of the recurrent charges for FY25.

1. The "2024/25 Budget" included in the Budget Pack records "Village Fund Contributions" for 2024/2025 in the amount of $83,360 [Exhibit 1 p 97]. It is accepted that this is the Capital Works Fund and this contribution was approved.
2. The "Refurbishment and Improvement Fund Budget For the year ending 30 June 2025" included in the Budget Pack records (for 2024/25) [Exhibit 1 p100]:

(1) Monthly Resident Contributions $83,360;

(2) Interest Income $10,834;

(3) FY25 Income + FY25 Opening Balance $319,901;

(4) Expenditure ($236,752)

(5) Closing balance $83,149.

1. The itemised Expenditure in the "Refurbishment and Improvement Fund Budget For the year ending 30 June 2025" includes the following item (for 2024/25) [Exhibit 1 p100]:

"(ILU/Apts) Roofing (50,000) Pointing and maintenance of villa asset"

1. The Minutes for the Residents General Meeting Friday 10 May 2024, record [Exhibit 1 pp94-95]:

"Geoff Ball moved a motion, "that the Residents agree to accept the expenditure as detailed in the FY24/FY25 budget as distributed.

A vote of Residents for the motion was called with a unanimous result."

(1) The residents of the Retirement Village approved contributions to the Capital Works Fund in the sum of $83,360.00. [Mr Ball agreed that this contribution was approved by residents].

(2) The residents agreed to accept the expenditure detailed in the FY24/25 Budget Pack which includes expenditure itemised in the "Refurbishment and Improvement Fund Budget For the year ending 30 June 2025".

(3) The residents approved expenditure relating to the Capital Works Fund (for the financial year ending 2025) which included $50,000 for roofing.

(4) The residents approved that after the approved expenditure had been paid from the Capital Works Fund, the closing balance of the Capital Works Fund would be $83,149.

1. In paragraphs 24 to 35 of her statement, Ms Narbeth sets out the process followed in relation to the budget for the financial year ending 30 June 2026. Ms Narbeth says [Exhibit 1 pp90 - 91 [24] - [35]]:

(1) On 31 March 2025 a meeting was held with the Residents Committee representatives to distribute and discuss the proposed FY26 Budget.

(2) On 14 April 2025 the Secretary of the Residents Committee sent an email with questions regarding the proposed "FY26 Budget". The email states: "The depletion of the CWF is of concern to the Committee. There is serious concern about $50,000 roofing cost. . . . On 21 April 2025 Ms Narbeth responded by email. The response states: "Repairs and maintenance of villa roofs are classified as a Capital Works Fund (CWF) expense. These works involve like-for-like repairs, including replacement of broken tiles, securing displaced tiles, addressing flapping roof insulation, and re-bedding or repointing of roof tiles as required." [Exhibit 1 p110]:

(3) On 28 April 2025 a Microsoft Teams meeting was held with the Residents Committee representatives to further discuss the proposed FY26 Budget.

(4) On 1 May 2025 the FY25 Budget Pack was distributed to the residents. The Budget Pack include the following documents [Exhibit 1 pp 114 - 117]:

(a) "FY26 Annual Operating Budget";

(b) "A Summary of Major Items of Income and Expenditure";

(c) "FY26 Annual Capital Works Fund Budget".

(5) On 7 and 9 May 2025 the respondent held informal budget information sessions on the proposed FY26 Budget for residents.

(6) On 9 May 2025 at the Residents General Meeting, the residents voted to approve the proposed FY26 Budget [Exhibit 1 p113].

1. The "FY26 Annual Operating Budget" included in the Budget Pack records "Village Fund Contributions" for 2025/2026 in the amount of $160,000 [Exhibit 1 p114].
2. The "FY26 Annual Capital Works Fund Budget" included in the Budget Pack records (for 2025/26) [Exhibit 1 p117]:

(1) Monthly Resident Contributions $160,000;

(2) Interest Income $8,173;

(3) Total Income $168,173;

(4) Total Expenditure ($196,677)

(5) Closing balance $31,069.

1. The itemised Expenditure in the "FY26 Annual Capital Works Fund Budget" includes the following item (for 2025/26) [Exhibit 1 p117]:

1. On 9 May 2025 the Acting Returning Officer for the Retirement Village signed a minute recording the following [Exhibit 1 p113]:

"Resolution voted on by the Residents of Coastal Waters on 9 May 2025:

Consent to and approve the following:

(a) Proposed FY26 Budget; and

(b) Proposed variation of the monthly recurrent charges from 1st July 2025

as set out in the Annual Budget Pack distributed on 1st May 2025

. . .

Resolution has therefore been passed by the Residents of Coastal Waters."

(1) The residents of the Retirement Village approved contributions to the Capital Works Fund in the sum of $160,000.

(2) The residents agreed to accept the expenditure detailed in the FY25/26 Budget Pack which includes expenditure itemised in the "FY26 Annual Capital Works Fund Budget".

(3) The residents approved expenditure relating to the Capital Works Fund (for the financial year 2026) which included $50,000 for roofing.

(4) The residents approved that after the approved expenditure had been paid from the Capital Works Fund, the closing balance of the Capital Works Fund would be $31,069.

1. As stated, the Real Issue in Dispute is whether the residents of the Retirement Village approved roofing expenditure in the total amount of $100,000 and whether the respondent is entitled to pay those expenses from the Capital Works Fund.
2. As regards the requirements of the Act, the evidence and findings set out in paragraphs [14] to [26] above establishes that:

(1) In accordance with s 114(1),the respondent sought the consent of the residents of the Retirement Village to the expenditure itemised in the documents included in the annual Budget Packs for the financial years ending 2025 and 2026.

(2) In accordance with s 114(2), the respondent provided information in relation to the proposed expenditure to the budgets for the for the financial years ending 2025 and 2026, requested by the Residents Committee for the purpose of deciding whether consent should be given.

(3) In accordance with s 114(4), on 10 and 30 May 2024 and on 9 May 2025 the residents met to consider and vote on the budgets for the for the financial years ending 2025 and 2026 and advised the respondent that they consented to the budgets.

(4) In accordance with section 116 (1) (a), at the residents general meeting held on 10 May 2024 and by proxy conducted on 30 and 31 May 2024, the residents of the Retirement Village approved the proposed annual budget for the financial year ending 2025 and consented to the expenditure itemised in the "2024/25 Budget", the documents titled "A Summary of Major Items of Income & Expenditure" and the "Refurbishment & Improvement Fund Budget For the year ending 30 June 2025" included in the Budget Pack distributed to the residents.

(5) In accordance with section 116 (1) (a), at the residents general meeting held on 9 May 2025 the residents of the Retirement Village approved the proposed annual budget for the financial year ending 2026 and consented to the expenditure itemised in the documents titled "FY26 Annual Operating Budget", the "A Summary of Major Items of Income & Expenditure" and the "FY26 Annual Capital Works Fund Budget" included in the Budget Pack distributed to the residents.

1. Section 116(3) provides than an operator must not expend money received by way of recurrent charges otherwise than in accordance with the approved annual budget or any amendment authorised under s117.
2. The Tribunal finds that for the financial years ending 2025 and 2026, the residents of the Retirement Village approved roofing expenditure in the total amount of $100,000 and the respondent is entitled to pay those expenses from the Capital Works Fund.
3. For these reasons the Application should be dismissed with no orders as to costs.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.